A Successful DUI Defense

A Breathalyzer Below .08 is Not a DUI Defense When There’s an Alleged ‘Totality of Circumstances’

We get this a lot: a DUI defendant headed into an arraignment asks, “How is this happening when my breathalyzer had me way below .08?”

The answer is as simple as it is infuriating: a .08 is not the only standard. An arresting officer can cite – as they frequently do – “the totality of the circumstances,” as the rationale for a DUI arrest. In other words, that, in their opinion, based on their training, there were other signs indicating intoxication.

What ‘Totality of Circumstances’ Means

When someone is pulled over for a traffic violation that may indicate impairment of some kind, the officer who comes to the car window is already assessing you and the car. They are noting the condition of the car, they are looking through the back window, then they’re looking at you. They are noting how you look, how you smell, how you’re acting, how you’re talking, what you’re wearing.

The odds are fairly high that they have made up their mind a minute or so after initiating contact. That’s when they most likely will ask you to take a Voluntary Field Sobriety Test. That test, of course, is highly subjective and the officer’s evaluation of your performance may well be influenced by their initial observations.

Then, ‘based on the totality of the evidence’ if they believe, in their opinion, that you are under the influence of alcohol and/or drugs they will make an arrest for DUI.

Quick primer: in Washington, the "totality of circumstances" for a DUI (Driving Under the Influence) arrest refers to the combination of numerous factors and observations made by the arresting officer. These may include, but are not limited to:

A Successful DUI Defense

The DUI Arrest

Knauss Law’s experience with a recent client nicely sums up how a DUI arrest on totality of circumstances occurs and some of the inherent problems with it, problems that can lead to dismissal or acquittal.

Our client pulled off a busy highway to look up something on her phone. We’ll note right here that this is normally looked at as a fairly responsible thing to do. A police officer pulled up for a “Community care taking” check … as in ‘just making sure everything is okay.’

The officer began an ‘interview.’ They observed “wet, watery eyes” and “smelled booze of some kind.” The driver was put through a field sobriety test. Then the officer asked her to take a breath test. She refused but offered to immediately take a more invasive, much more accurate blood test. That, apparently, was enough for the officer to arrest her for DUI.

Our Defense and a DUI Acquittal

Our Defense was simple – the officer was wrong and the arrest was a perfect example of confirmation bias. The officer couldn’t articulate more ‘circumstances’ beyond the eyes and smell. The dashcam footage of the field test did not support their finding that our client failed any portion of it – she, in fact, handled it all smoothly.

In this case, we were able to show that the officer’s observations did not meet any kind of standard arising to the totality of the circumstances. The officer had instead made a series of assumptions based on one initial observation – a smell. Everything else they did and observed confirmed that initial feeling.

Our client was acquitted.