DUI Stop, Refusal, and the Blood Warrant Decision
At 02:10 on a Saturday, Officer Reyes watches a sedan drift over the fog line twice on a four-lane road, then make an unsignaled lane change; radar shows 49 mph in a posted 35-mph zone. She stops it in a well-lit gas station lot. The 34-year-old driver fumbles for his license, has bloodshot watery eyes, slurred speech, and an odor of alcoholic beverage, and admits, 'two beers about an hour ago.' There are no passengers, no injuries, and no independent witnesses. Reyes has six years' experience and ARIDE training. The driver agrees to standardized field sobriety tests but sways during instructions; he shows four of six clues on horizontal gaze nystagmus, three on walk-and-turn, and two on one-leg stand. He refuses a preliminary breath test. Reyes arrests him for DUI. At the station, he refuses the evidentiary breath test and says, 'I'm not doing anything without a lawyer.' A supervisor is available; the on-call magistrate is 25 minutes away.
1. What facts support the stop and the arrest, and how would you distinguish reasonable suspicion from probable cause in the report?
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Stop. The stop is a seizure and needs reasonable suspicion of a traffic violation. The observed fog-line crossings, unsignaled lane change, and radar speed of 49 in a 35 zone are specific, articulable facts. I would document the officer's vantage point, radar calibration or verification if applicable, road conditions, and duration of observation.
Arrest. Probable cause is a fair probability that a crime was committed. Here the totality includes driving behavior, bloodshot watery eyes, slurred speech, odor, admission to drinking, swaying during instructions, and SFST clues. HGN clues should be described only if the test was properly administered and the officer can articulate scoring; admissibility can be challenged. The PBT refusal is not needed for probable cause and should not be treated as proof of intoxication.
Report. Separate observations from conclusions: 'I observed four of six HGN clues' rather than 'he was drunk.' Note the driver's statements verbatim and any medical rule-out. The distinction matters because the stop can be lawful on reasonable suspicion while the arrest still fails if probable cause is thin. If the SFSTs were affected by lighting, footwear, or a medical condition, say so.
2. The driver refuses the evidentiary breath test and asks for a lawyer. May you obtain a blood sample, and what must you show?
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Refusal has administrative consequences under implied consent, but it does not authorize a warrantless blood draw. A breath test incident to a valid DUI arrest is generally permitted, but blood is more intrusive; under Fourth Amendment case law, the natural dissipation of alcohol alone is not a per se exigency. I would apply for a search warrant, including a telephonic warrant if available, and include the probable-cause facts, the arrest, the implied-consent warning, and the refusal. If a warrant is granted, use a trained phlebotomist, document the site, time, chain of custody, and amount. If no warrant can be obtained and there is no true exigency such as a medical emergency, do not physically compel the draw; document the refusal and seek charges based on other evidence.
On the lawyer request: once a suspect invokes counsel in a custodial interrogation, questioning must stop. But the chemical-test request is not ordinary interrogation, and the request for counsel does not itself create a right to consult before deciding. I would not threaten, deceive, or tell him he has no rights; I would read the implied-consent warning verbatim, clarify that it is a test request, and document his exact words. If he continues to refuse, the warrant application proceeds.
3. What should the report and evidence packet contain, and what defense challenges should you anticipate?
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Report: time-stamped chronology from observation to booking; specific driving acts; stop location and lighting; personal contact observations; verbatim admissions; SFST conditions and clues; PBT request and refusal; arrest decision; Miranda if custodial questioning occurred; implied-consent warning verbatim; refusal; warrant timeline; blood draw if any. Body-worn camera should be uploaded and not edited. Evidence packet: certified radar or calibration, SFST notes, warning form, warrant and affidavit, blood kit chain of custody, medical release if applicable.
Anticipate challenges: no reasonable suspicion for the stop; invalid radar; improper SFST administration; HGN not admissible or not reliable; no probable cause because the driver's statements were ambiguous; refusal wrongly used as evidence; Miranda violation; warrant lacking particularity or probable cause; coerced consent or test; medical condition explaining symptoms. The best response is contemporaneous, specific documentation and preserving all video. If a fact is weak, do not overstate it; the report should show the officer considered alternatives such as a medical emergency and called EMS when appropriate.