Updated: May 31
In phase two, the goal is to personally observe the driver. The idea is for Officer Friendly to get close enough to conduct the three "S" inquiry-- sight, smell, and sound. Do the driver's eyes look blood shot and watery? Does Officer Friendly smell the odor of an alcoholic beverage? Do they see an open container?
Again, the intent is to elevate to the next phase. In this case, it's to get the motorist out of the car to build more evidence of insobriety sufficient to invoke implied consent and request a preliminary breath test typically following three standardized field sobriety tests. Some might argue it's a self-fulfilling prophesy but without hard statistical data on how many motorists are released after "passing" the SFSTs, it's impossible to know whether the officers frequently make false accusations or not. Of course, such data are not routinely released by law enforcement.
In any case, Phase Two of DUI detection seeks to do is to get you out of the car for Phase Three-- the latter commonly phrased as "I asked Danny Defendant to step from the vehicle" or "I asked Danny Defendant's to administer standardized field sobriety tests and he consented." All SFSTs are consensual. Refusal makes it more difficult, but not impossible, to justify invocation of implied consent and, later, arrest. Refusal of the later Datamaster DMT may, but is not required, to be used by the jury to determine the outcome of a trial.
Next time, we’ll address Phase Three—the object of Phase Two.
If you or a loved one has been arrested for OWI (DUI) in Iowa, contact us for a free initial consultation. Remember, however, that a blog is not legal advice, and that sending unsolicited information to an attorney over the Internet does not establish an attorney client relationship.