The first step your DUI attorney should take in preparing your case is to secure the scene and any evidence.
As soon as you contact your DUI attorney, the attorney should ask you to return to the location where the field sobriety tests were performed. The attorney’s investigator should accompany you if possible. You or the investigator should take photographs of the area to freeze the scene.
Virtually all police reports will claim that the area where the field sobriety tests were administered was a smooth and level area. Often this is not the case. Most field sobriety tests are given at the side of the road or on the sidewalk. Most roads are crowned and most sidewalks are sloped to facilitate water runoff. Rarely is the location truly level. You and the investigator should also check to see what the lighting was like in the area.
Did you make any phone calls from the jail? These calls are often made late at night and the person to whom the call is made is frequently asleep. As a result, all or part of the call may have been recorded on a telephone answering machine or some sort of voice mail.
If any part of the conversation is on the recorder, you should secure the recording immediately. The recording may reveal that your speech was not slurred. When this evidence is available, it proves to be quite powerful in combating any claims of slurred speech.
Your DUI lawyer should ask about the shoes you were wearing at the time of your arrest. Women sometimes perform field sobriety tests in high heels. Men may have executed the tests in cowboy boots. Balance tests are much more difficult to perform in shoes with an extended heel. Similarly, shoes with little support, such as sandals, also make balance exercises more difficult.
You should keep the shoes in the same condition they were in when you performed the field sobriety tests. If the trial is not going to take place for some time, it may be necessary for you to avoid wearing the shoes again until trial. This preventive step guards against an objection that the shoes are inadmissible because the shoes have changed since the arrest date due to wear.
You should provide your DUI lawyer with a list of the names and phone numbers of all persons you had contact with throughout the evening of your arrest. This includes the time period starting a couple of hours before any actual drinking took place.
It is important for your lawyer to contact these persons as soon as possible to inform the potential witnesses of the significance of remembering the evening’s events. Many of the potential witnesses may not know that you were arrested. Asking a witness who was not previously alerted to the arrest to remember the specifics of an otherwise non-descript evening six months after the arrest is asking too much. The prospective witness’s memory must be cemented as soon as possible.
You may be reluctant to have some of the potential witnesses contacted because you do not want them to know you were arrested for drunk driving. This is entirely understandable. However, from a legal perspective, it is preferable for your DUI defense attorney to contact all of the would-be witnesses. If you still decline to let your attorney contact a witness, your DUI attorney may have you sign an acknowledgement that this is against his or her advice.