Weaving
The second observation nearly always found in DUI cases is “weaving.” Next to “thick and slurred speech,” “bloodshot eyes,” and “alcohol on the breath,” “weaving” almost seems required in order to make an arrest for driving while intoxicated. Officers will nearly always add weaving to the “observed” signs to their statements in a DUI case. Yet there is not much need to accuse the officer of lying, as they usually don’t have to. Once an officer has marked a car for possibly containing a drunk driver, he is overly aware of its actions. A preoccupied individual’s driving pattern could easily be mistaken for “weaving.”
The defense must convince the jury that weaving isn’t always necessarily a symptom of drunk driving. The officer should be cross-examined in a way that he/she acknowledges that no person drives in a perfectly straight line. Sober individuals have to continuously re-adjust steering when driving with a back-and-forth motion. Jurors should be reminded that this action often becomes second nature to a driver. In the end, it comes down to the degree of the “weaving” and the mechanical state of the automobile.
The defendant’s car should be thoroughly examined before the date of a trial. A statement by a licensed mechanic could very well offer crucial information to the defense. A few problems that could cause weaving or other inconsistencies in a car are:
Even without the help of a licensed mechanic as a witness, these issues could be addressed in the cross-examination of the officer.
A simple method when questioning the officer is to inquire about “black-and-white-fever.” Some know it by other names, but all officers are aware of the occurrence. Inquire how long the officer was following the defendant. Black-and-white-fever is just a term to explain the reaction of anybody who realizes they are being followed by a police car, which is black and white in color in many areas. Once a driver is aware of the car behind them, they avert their main attention from the road in front of them, to the rearview mirror. The driver’s concentration has already been broken at this point. He/she will become stressed, apprehensive, and on edge, reasonably so. Because the driver’s attention has been shifted to the mirror, he/she will have to continually adjust their driving direction, creating the “weaving” pattern the officer claimed to observe. Also, because stress can cause a driver to subconsciously release their foot from the accelerator, the erratic movements of accelerating and slowing down can occur.
An honest and experienced officer will readily admit that this phenomenon can occur, often with a comical air. Even if the officer refuses to admit to this possibility, though, the individuals in the jury itself will readily believe it does. They, themselves have experienced “black-and-white-fever.”
Another scenario: What if the defendant failed to brake at a stop sign and almost hit a pedestrian in the process? Again, ask the officer if he/she has ever given a ticket to someone driving drunk for failure to stop? Black-and-white-fever can also be attributed to this mistake. The driver was so distracted watching the police car in the rear view mirror that he/she missed the stop sign. Defense can easily establish that failure to stop is as common as speeding, and is not necessarily a symptom of driving while under the influence.
The next point made by the defense should be that the symptoms the officer noticed were certainly not that serious, or they would have stopped the defendant sooner. Why did the officer continue to simply follow the client? Why wasn’t the client stopped after the officer witnessed them speeding? What about after the witnessed “weaving”? The officer must be held in a tight grip by the defense through very controlled questioning. Any retort made by the officer can be easily countered. He/she might suggest they were “gathering evidence” or wished to give the defendant a fair shot by following rather than making them stop. Yet, what is the first and foremost duty of an officer? To protect the public. Allowing an intoxicated driver to continue driving clearly endangers the public in numerous ways. Being “fair” or “gathering evidence” is blatantly ignoring the officer’s primary duty. Any officer will have a difficult time in denying this.