In any DUI, the investigating officer will make a note of the “objective symptoms of intoxication.” Of course, as we’ll see these “cues” are not necessarily symptoms of intoxication and that, in every investigation, there’s need to interpret observations; the necessary act of interpretation means the conclusions reached are not objective, and because the conclusions are reached in the field, rather than at a controlled location with set parameters, by a police officer who, though perhaps well-meaning, is not trained as a scientific expert means these findings are unreliable. The state has made great attempts to cover the obvious subjective and unscientific nature of DUI investigations by unifying standards of evaluation. But the fact that police officers, spanning different agencies, conduct DUI investigations similarly does not cure the work of its obvious deficiencies.
Let’s say more by examining the so-called “objective symptoms of intoxication” noted in any DUI investigator’s report. The list includes: slurred speech, red and watery eyes, smell of an alcoholic beverage, unsteady gait, and appearance (e.g., condition of clothing or grooming). It does not take long for one to realize there are countless innocent explanations as to each of these “symptoms of intoxication.” Can you think of why a driver of a vehicle may have disheveled clothing other than his being intoxicated? Maybe he was in a hurry to leave the house. Maybe he’s poor and the clothes he can afford don’t match or fit him well. Maybe he’s a physics professor and is so lost in his thoughts that he’s lucky to find matching socks on his feet at any given time.
Let’s continue the exercise. Why might a driver have red and/or watery eyes? Maybe he has allergies. Maybe he’s been crying. Maybe he’s worked the night shift. Maybe the lights from the officer’s patrol vehicle or his “torch” are bright causing his eyes to react. Maybe he suffers from an eye disorder or medical condition. Maybe his eyes normally so appear. And, what of slurred speech? Maybe this is the driver’s normal speech pattern. Maybe the driver is nervous and his nervousness causes him to change his speech pattern. The list goes on. The explanations are endless, truly.
For the investigating officer to conclude his observations evidence alcohol intoxication, he must make an interpretation. This act removes the notation in his report from the objective category and classes it as an opinion, something subjective. Now, a lay person can generally render an opinion in court but not on those things which require special education, training and/or experience. Making a determination that someone is intoxicated by their appearance or how they speak or walk must be done, if at all, by scientific experts. Police officers are not that. They are lay persons offering their lay opinions, couched as scientific and reliable by the rituals the state performs by training its agents, in a cursory fashion, in the pseudo-science that is “objective symptoms of intoxication.”
