Probable Cause for a DUI Arrest

In order to make a warrantless arrest for alleged DUI, the officer has to have probable cause to believe the defendant was operating or attempting to operate a vehicle while under the influence of drugs and/or alcohol.  At the time of the arrest, it is not necessary that the officer have proof of guilt beyond a reasonable doubt but it is necessary the evidence lead the officer to believe that guilt is more than just a possibility.  

Generally all the information known to the officer is examined to determine whether there was probable cause to arrest.  In fact, if you look at paragraph 7 on the Officer's Certification and Notice of Suspension (a.k.a. DC-27) you’ll see the most common factors courts look at in evaluating whether there was probable cause to arrest.  Failed field sobriety tests are listed in paragraph 7 on the Officer's Certification and Notice of Suspension (a.k.a. DC-27) and are usually one of the most significant factors in determining whether there was probable cause to arrest. The State of Kansas recognizes three tests as “The Standardized Field Sobriety Tests”, they are the Horizontal Gaze Nastagmus (HGN) Test, the Walk & Turn Test and the One-Leg Stand Test.  For reasons too complicated to get into here, even though officers almost always administer the HGN test (eye test), they can’t talk about the results of the test in court.  The other two tests, i.e., the Walk & Turn Test and the One-Leg Stand Test, are divided attention task tests which means they are judging not only your ability to physically perform the tests but how well you do in following the instructions.  What a lot of officers tend to forget (or ignore) is that in order for the results of these tests to be valid and relevant the tests have to be properly administered.  For example, I have had many cases where the officers improperly demonstrated the Walk & Turn Test and then claimed my client failed the test when my client performed the test just like the officer demonstrated.  Obviously that’s not fair and invalidates the test results.  Why does it matter?  Because if the field sobriety test results aren’t valid, then the judge is likely to disregard the tests altogether and then there may not be enough other evidence to prove there was probable cause for arrest.  If there wasn’t probable cause for arrest, then the breath or blood test result are likely inadmissible and in the end the prosecutor may be “forced” to dismiss the case.

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