Personal Contact: Using the Officer's Observations Against Them

Posted on March 10, 2025 in Uncategorized

Written by Charles Goodwin
Edited by Michelle Behan and Steven Hernandez

The typical DUI investigation has three phases. It begins with the vehicle in motion and focuses on driving patterns that officers are trained might indicate impairment. Next is personal contact, where the officer will observe physical manifestations that are also purportedly correlated with alcohol ingestion and impairment. Finally, the officer will con duct the pre-arrest screening, which consists of administering the standardized tests. This article will focus on the personal contact portion of the investigation. Often overlooked by attorneys, the personal contact phase arguably provides the most firepower to protect your client. An effective cross-examination on personal contact allows you to deconstruct the officer's narrative and destroy the jury's confidence in the chemical test result.

Personal contact is the only part of the investigation unscripted with the driver. The officers are looking for anything they can use to move on to the next phase. They will be focusing on what they see, what they hear, and what they smell. Here are the most common clues that officers are looking for:¹

Officers will also be purposely attempting to confuse and disrupt the driver by asking for two items at once, or interrupting the driver by during the search for document by asking distracting questions. Officers are specifically trained to do this in order to justify a DUI investigation.

When reviewing the personal contact phase, the DUI defense lawyer must remember: Context, Clues and Counterpoints. These three concepts apply to each clue the officer evaluates. Here are common ways to place personal contact clues into context during trial:

CONTEXT

Pretend a police report states that the driver had blood shot eyes, slurred speech, and smelled of intoxicating liquor but mentions nothing else. During cross examination, it should be asked, "were the clothes soiled? Did they have problems handing you their documents? Their responses were not inconsistent?" until all the cues in the manual are asked about. It is important that the jury or the judge knows these clues are coming from their own training. Of the many clues they can observe, they saw only 3!

Focusing on what the driver did NOT do is also a powerful tool to fight a DUI case. The officer is trained to look for certain things in a DUI case, to the exclusion of other things. While some officers will testify that almost anything can be a clue of impairment, focusing on those things listed in the NHTSA manual is a great place to begin. Here are a couple of examples:

Or

The police report contains the following line: "I asked the driver to exit his vehicle and come to the front of my car. Once there, I asked him..." This opens the door to a ton of cross to show lack of impairment. For example, "He parked the car with no issue? He undid his seat belt with no issues? He opened the door without fumbling? He stepped out of the car without stumbling? Made his way to the police car with no issue? Followed all your commands without being told twice? He didn't need assistance standing? He understood and responded to everything you were saying?

The officer's own observations – or lack of them – are excellent cross examination topics to expose the lack of impairment without requiring the lawyer to tackle the administration of the standardized field sobriety tests

The personal contact phase of the DUI stop is one of the most important issues in any DUI case. It is the driver interacting with the police, and if they look severely impaired it can be game over before the SFSTs and chemical tests even come into play. The same thing should happen to the prosecution if the personal contact phase shows no outward indication of impairment. To expose that, focus on the context of the clues, what your client did or did not do, and bring to light the counterpoints suggested above. Have the judge or jury questioning why the officer even moved on to the SFSTs and you're already on the way to a two word verdict.

1. 2023 SFST Participant Manual: Session 6, Pages 5-7

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