1.Did the officer have probable cause to arrest you? Now you may not be familiar with this term, but your attorney will flush out whether or not the officer made a legal arrest. Police officers in Michigan need probable cause to make an arrest. Officers need a certain level of evidence that you violated one of the drunk driving statutes in order to legally arrest you. This evidence will come from your statements, along with field sobriety tests, observations by the officer and a portable breath test.
2.What field sobriety tests were performed? This could be reciting the alphabet, counting, the one-legged stand, the walk-and-turn, and a number of other tests. The results of these tests will help or hurt your case. I also find it interesting, which tests are offered to certain people in different situations. Most clients fail these tests, because police officers will find any reason to fail a subject.
3.What sort of observations did the officer make? While this information will be contained in the police report, it’s important to hear from the source.
4.Was there an odor of alcohol? Alcohol has no odor! At trial, when the officer is questioned on cross examination of whether the smell was from beer or wine or mixed drink, it is clear that they have no independent recollection of what they smelled.
5.Did you have bloodshot or watery eyes? The officer will have to admit that they do not know what your client's eyes normally look like. They will have to admit that they don't know how long a client had been awake that day or what sort of eyestrain they may have experienced during the day. If a photo was taken of your client by the officer or at the jail, try to take a look at it to see if the eyes look normal in the picture. Also, at trial, sometimes the client’s eyes will look bloodshot and it is a not a waiver of the Fifth Amendment right to remain silent by having the officer observe the client's eyes at trial and testify that they are bloodshot.
6.Did you have slurred speech? Again, the officer will have to admit that they do not know your client's normal speech pattern. The officers have forms which have checkmarks to fill in for these observations and field sobriety test results. On cross examination, it is often clear that the officer has no independent recollection other than what was checked on this form. Thus, an effective way to attack testimony about slurred speech is to ask the officer whether he understood what the client was saying. Then the officer should be asked whether the client slurred every word or just some words. Very often, the only slurring was the client rapidly saying the letters LMNOP while doing the alphabet.
7.Did you take a portable breath test, and were you read your rights? These test results can help form the basis of probable cause for arrest, but generally (minus a few exceptions) are not admissible at your trial. A police officer cannot force you to take this test; you should have been read your rights, and been informed that failure to take this test will result in a civil infraction. THAT IS ALL! You will not lose your license if you refuse this test. The officer may say that you will go to jail if you refuse, technically this might be true, but its not because you didn’t take the test, it’s because you’re going to jail already, unless you can show your blood alcohol content is below the legal limit. Even then the officer may still arrest you.