You were stopped by the police in D.C. or Northern Virginia at 3 in the morning, given Field Sobriety Tests (FSTs), and arrested. Back at the station you took the breath test, blew a .08 or above, and spent most of the night in a cell. You’re charged with DUI, you have a trial, and are found guilty. The biggest reason you now have a DUI conviction is because there is a “per se” rule that you were driving under the influence if your breath test score was .08 or above. If the test is admitted into evidence, you have very little chance of winning a trial. So your D.C. DUI lawyer will try very hard to keep that score out of your trial. There are many tools at your lawyer’s disposal to accomplish this, but perhaps the most powerful tool is the United States Constitution.

The Fourth Amendment, and decades of U.S. Supreme Court case law establish that the police cannot conduct a traffic stop without “reasonable articulable suspicion” that the driver is committing a criminal offense. If, after the traffic stop, the police want to arrest you for DUI, they cannot do so without “probable cause” that you have committed a crime. What does this mean for your DUI defense? To answer that, we have to rewind to the beginning of your case, when you’re still in your car, driving home, before you even knew the police were behind you.
In order to establish that he or she had reasonable suspicion to pull you over, the police officer has to point to specific facts that indicated you were doing something illegal. Because the officer can’t pull you over simply because it was 3 in the morning and you were the only person on the road. He can’t stop you because he doesn’t like the look of your car, or your face. She can’t haul you out of your car because she has a “hunch” that you’re up to no good. The Constitution and the Supreme Court do not allow the police to intrude on your life based on randomness or hunches. If you were obeying all traffic laws, officers will find it difficult to establish the reasonable suspicion the law requires for making a traffic stop. If they can’t, your DC DUI lawyer will argue that the evidence—including every observation made by the officer, each FST, and most importantly, the breath test scores—should be kept out of your case. If the judge agrees, you cannot be convicted of DUI.

But what if you were driving with a broken taillight, you rolled through that stop sign, or you were pressing a little too hard on the gas? Well, the bad news is that the officer has every right to stop you. The good news is that this is not the end of the story. Because in order to arrest you, take you back to the station, and give you that ill-fated breath test, the officer still has to establish probable cause to arrest you. If you don’t show obvious signs of being under the influence, and you pass the FSTs, then the police officer has no constitutional basis to make a DUI arrest. And if there is no such basis, then the judge must suppress your breathalyzer scores.
Make no mistake, only in a small percentage of DC DUI or Northern Virginia DUI cases will the judge find that the police lacked the reasonable suspicion or probable cause to stop or arrest a defendant. But your experienced DC-area DUI lawyer will explore every possible defense in your case, and should fiercely defend your constitutional rights.


For a consultation with a DUI lawyer with experience in defending clients in Washington, D.C., Arlington, Alexandria, or Fairfax, contact Gretchen Taylor Pousson at Scrofano Law PC.