Personal Contact by Law Enforcement in DUI Stops

DWI Detection Phase Two: Personal Contact, like Phases One and Three, comprises two major evidence gathering tasks and one major decision. Your first task is to approach, observe and interview the driver while they are still in the vehicle to note any face-to-face evidence of impairment. During this face·to-face contact you may administer some simple pre-exit sobriety tests to gain additional information to evaluate whether or not the driver is impaired. After this evaluation, you must decide whether to request the driver to exit the vehicle for further field sobriety testing. In some jurisdictions departmental policy may dictate that all drivers stopped on suspicion of DWI be instructed to exit. It is important to note that by instructing the driver to exit the vehicle, you still are not committed to an arrest; this is simply another step in the DWI detection process. Once you have requested the driver to exit the vehicle, your second task is to observe the manner in which the driver exits to note any additional evidence of impairment.

NOTE: You may initiate Phase Two without Phase One. This may occur, for example, at a roadblock, or when you have responded to the scene of a crash.

The first task of Phase Two, observation and interview of the driver, begins as soon as the suspect vehicle and the patrol vehicle have come to complete stops. It continues through your approach to the suspect vehicle and involves all conversation between you and the driver prior to the driver's exit from the vehicle.

You may have developed a strong suspicion that the driver is impaired prior to the face-to-face observation and interview. You may have developed this suspicion by observing something unusual while the vehicle was in motion, or during the stopping sequence, or you may have developed no suspicion of DWI prior to the face-to-face contact. The vehicle operation and the stop may have been normal, you may have seen no actions suggesting DWI. For example, you may have stopped the vehicle for a equipment/registration violation, or where no unusual driving was evident. In some cases, Phase One will have been absent. For example, you may first encounter the driver and vehicle after a crash or when responding to a request for motorist assistance.

Regardless of the evidence that may have come to light during Detection Phase One, your initial face-to-face contact with the driver usually provides the first definite indications that the driver is impaired.

Based upon your face-to-face interview and observation of the driver, and upon your previous observations of the vehicle in motion and the stopping sequence, you must decide whether there is sufficient reason to instruct the driver to step from the vehicle.

For some law enforcement officers, this decision is automatic since their agency policy dictates that the driver always be told to exit the vehicle, regardless of the cause for the stop. Other agencies, however, treat this as a discretionary decision, to be based on what the officer sees, hears and smells during observation and interview with the driver while the driver is seated in the vehicle.

If you decide to instruct the driver to exit, you must closely observe the driver's actions during the exit from the vehicle and note any evidence of impairment.

Face-to-face observation and interview of the driver allows you to use three senses to gather evidence of alcohol and/or other drug influence:

• the sense of sight;
• the sense of hearing; and
• the sense of smell.

There are a number of things you might see during the interview that would be describable clues or evidence of alcohol and/or other drug influence. Among them are:

• bloodshot eyes;
• soiled clothing;
• fumbling fingers;
• alcohol containers;
• drugs or drug paraphernalia;
• bruises, humps or scratches;
• unusual actions.

Among the things you might hear during the interview that would be describable clues or evidence of alcohol and/or other drug influence are these:

• slurred speech;
• admission of drinking;
• inconsistent responses;
• abusive language;
• unusual statements.

There are things you might smell during the interview that would be describable clues or evidence of alcohol and/or other drug influence. Typically these include:

• alcoholic beverages;
• marijuana;
• "cover up" odors like breath sprays;
• unusual odors.

Proper face-to-face observation and interview ofthe driver demands two distinct but related abilities:

• the ability to recognize the sensory evidence of alcohol and/or other drug influence; and
• the ability to describe that evidence clearly and convincingly.

Developing these abilities requires practice.

A basic purpose of the face-to-face observation and interview ofthe driver is to identify and gather evidence of alcohol and/or other drug influence. This is the purpose of each task in each phase of DWI detection.

During the face-to-face observation and interview stage, it is not necessary to gather sufficient evidence to arrest the driver immediately for DWI.

There are a number of techniques you can use while the driver is still behind the wheel. Most of these techniques apply the concept of divided attention. They require the driver to concentrate on two or more things at the same time. They include both questioning techniques and psychophysical (mind/body) tasks.

These techniques are not as reliable as the standardized field sobriety tests but they can still be useful for obtaining evidence of impairment. THESE TECHNIQUES DO NOT REPLACE THE SFST.

Questioning Techniques

The questions you ask and the way in which you ask them can constitute simple divided attention tasks. Three techniques are particularly pertinent:

• asking for two things simultaneously;
• asking interrupting or distracting questions; and,
• asking unusual questions.

An example of the first technique, asking for two things simultaneously, is requesting that the driver produce both the driver's license and the vehicle registration. Possible evidence of impairment may come to light as the driver responds to this dual request. Be alert for the driver who:

• forgets to produce both documents;
• produces documents other than the ones requested;
• fails to see the license, registration or both while searching through wallet or purse;
• fumbles or drops wallet, purse, license or registration;
• is unable to retrieve documents using fingertips.

The second technique, asking interrupting or distracting questions, forces the driver to divide attention between searching for the license or registration and answering a new question. While the driver is responding to the request for license, registration or both, you ask an unrelated question like, "Without looking at your watch, what time is it right now?" Possible evidence of impairment may be disclosed by the interrupting or distracting question. Be alert for the driver who:

• ignores the question and concentrates only on the license or registration search;
• forgets to resume the search after answering the question;
• supplies a grossly incorrect answer to the question.

The third technique, asking unusual questions, is employed after you have obtained the driver's license and registration. Using this technique, you seek verifying information through unusual questions. For example, while holding the driver's license, you might ask the driver, "What is your middle name?"

There are many such questions which the driver normally would be able to answer easily, but which might prove difficult if the driver is impaired, simply because they are unusual questions. Unusual questions require the driver to process information; this can be especially difficult when the driver does not expect to have to process information. For example, a driver may respond to the question about the middle name by giving a first name. In this case the driver ignored the unusual question and responded instead to a usual -- but unasked -- question.

Know if there are any judicial restraints in reference to these tests.

This technique requires the subject to recite a part of the alphabet. You instruct the subject to recite the alphabet beginning with a letter other than A and stopping at a letter other than Z. For example, you might say to a driver, "Recite the alphabet, beginning with the letter E as in Edward and stopping with the letter P as in Paul." This divides the driver's attention because the driver must concentrate to begin at an unusual starting point and recall where to stop.

This technique requires the subject to count out loud 15 or more numbers in reverse sequence. For example, you might request a driver to, "Count out loud backwards, starting with the number 68 and ending with the number 53." This, too, divides attention because the driver must continuously concentrate to count backwards while trying to recall where to stop.

NOTE: This technique should never be given using starting and stopping points that end in 0 or 5 because these numbers are too easy to recall. For example, do not request that the driver count backwards from 65 to 50. Instead, ask the driver to count backwards from 64 to 49.

In this technique, the subject is asked to touch the tip of the thumb in turn to the tip of each finger on the same hand while simultaneously counting up one, two, three, four; then to reverse direction on the fingers while simultaneously counting down four, three, two, one.

In each instance, note whether and how well the subject is able to perform the divided attention task.

Your decision to instruct the driver to step from the vehicle usually is made after you have developed a suspicion that the driver is impaired. ^* Even though that suspicion may be very strong, usually the suspect is not yet under arrest when you give the instruction.

How the driver steps and walks from the vehicle and actions or behavior during the exit sequence may provide important evidence of impairment, Be alert to the driver who:

• shows angry or unusual reactions;
• cannot follow instructions;
• cannot open the door;
• leaves the vehicle in gear;
• "climbs" out of vehicle;
• leans against vehicle;
• keeps hands on vehicle for balance.

Proper face-to-face observation and interview of a driver requires the ability to recognize the sensory evidence of alcohol and/or other drug influence and the ability to describe that evidence clearly and convincingly. Developing these abilities takes practice.

Source: NHTSA

Last reviewed October 2024