Night-Bias – And How It Can Lead To Your DWI Arrest

Biases. We all have them. Police officers are no different.

Most of us, officers included, may be reluctant, even loathe, to accept this premise. It is true, though. Biases exist even among the police and this can also be present in a DWI arrest.

Biases can be positive and negative. Obvious or imperceptible. One distinction involving police bias is that it can impact the public. That means you.

Let us focus on one seemingly innocuous example and how it can impact you. It is a bias where darkness influences police decisions. I call it “night-bias.”

“Night-bias” occurs when an officer responds in a particular way to an event at night. If the same activity occurred during the day, a different response would occur. An example of this is when an officer observes a person hanging around a commercial building at night. The business has long closed. Given the late hour, an officer will investigate further. Makes sense, right? Potential burglar? Most would consider that example as less bias and more common sense.

On occasion, however, the night action taken by an officer is less clear. Its legitimacy less apparent.

Consider where an officer turns to follow a car at 2:30 a.m. No violation of law is observed when the officer initially turned to pursue. The officer pursued the car because at 2:30 a.m. it is one of very few cars on the road. More pointedly, the officer believes at 2:30 a.m. a motorist is more likely than not to have consumed alcoholic beverages. Bars have just closed. No empirical data exists to support the “more likely drunk” hypothesis. Just her “night-bias.”

Still common sense? Or an unjustifiable targeting?

Is the officer’s initial pursuit – the turn and follow – with no violation observed, legal? Probably. Even though it is, by definition, a hunch. Is it ethical? The answer, less clear. Consider a well-known police mantra: if you follow a car long enough, a violation will occur. Which justifies the stop. Where none initially existed. When a violation is observed, the stop is legal.

So police may have inclination to follow you. More so at night. Even where no initial violation is observed. They can follow you until an infraction is observed. Sometimes, it takes miles. When a “pursued” vehicle crosses a lane marking or other transgression, the police have an articulable reason to justify the stop. It all started with their “night-bias.” The turn and follow decision.

Still, would the initial follow and pursuit by police have occurred during daytime hours?

Unlikely. Police do not harbor the same biases on weekday mornings. When motorists are heading to work. Far fewer “Crossed Pavement Markings” tickets, the staple infraction in nighttime DWI arrest, are written during the day.

If you had been drinking before the 2:30 a.m. stop – impaired or not — you are more vulnerable to arrest. Due to the night. Due to “night-bias.” The cop’s presumption kicks in. Your car is followed, initially without justification. Then stopped. If alcohol is detected, you will be asked to exit. To perform field sobriety tests. Blow into a roadside breath test. Then likely arrested.

Is that fair? Happens every day. In the above example, if you are impaired, does the end — your arrest — justify the means or process by which it came about?

Biases. We all have them. Police are no different.

But police night-bias? Whether justified or not, it could lead to your arrest.

Contact a trusted and skilled Rockland DWI attorney at Inniss Law Firm today to discuss your case or schedule a confidential consultation.

* -The above article represents general information only and is not legal advice. No attorney-client relationship is created between the author or any reader. To establish attorney client relationship there must be a signed Engagement Letter. This article is no substitute for hiring or obtaining legal counsel for your specific legal matter. The facts contained herein are hypothetical.