Monday, March 12, 2012

Pulled Over, and You've Been Drinking: Do's and Don'ts

I really do love what I do.  Helping people who have been charged with crimes give each day a fresh feel to it.  I've handled cases ranging from simple traffic violations to complex felony situations.  My work is often very exciting and interesting.  One area that is less exciting than the others is DWI defense.  It's not that DWI's are less serious than other crimes or that they involve any less work.  It's just that they tend to be very similar and often lack the opportunity to really get involved with investigating, fact finding, and witness interviews.  They tend to follow a pretty specific pattern (unless there are challenges to the actual arrest...then it can get fun) and end in similar ways.  However, regardless of how interesting some of the cases I've worked on in the past may be, when people find out that I handle DWI cases, they all want to ask about how would handle being pulled over after having consumed a few adult beverages.  In light of this, I thought sharing my answer with my blog community would be a useful exercise for me and for my readers.

Keep in mind, the following is not intended to be construed as specific legal advice.  Every person's situation is different, so following one set of rules doesn't make any sense.  If you are dealing with a DWI charge, please contact a Minnesota DWI attorney in order to get specific, individualized advice on how to handle your situation.

The situation I'm about to cover is going to make the assumptions that I have indeed been drinking and believe strongly that if I submit to field sobriety or a preliminary breath test (PBT), I will fail.  If you have, in fact, not been drinking, or you believe strongly that you have not drank enough alcohol to fail these tests, my advice for you would be different.  I'll touch on that situation at the end.  But, first, I've been drinking, I could very well be legally drunk, and the police are hot on my trail.  What do I do?

I get pulled over by the officer.  After a short burst of curse words and self-loathing, I gather my license and insurance information.  In Minnesota (and all other states, for that matter), one thing you are required to tell an officer of the law is your personal information when asked for it.  If you are pulled over while operating a motor vehicle, you are also required to show proof of valid insurance on your vehicle.  No questions asked, there.

The officer will usually read your license to get your name, address, and whatnot, and then ask you a question along the lines of "Do you know why I've pulled you over, today?"  Whether or not I know why he pulled me over, I would answer in the negative.  If you start rattling off reasons for the officer to have pulled you over, that's not going to help your cause.  On the other hand, if the officer asks something like "Do you know how fast you were going," always answer "yes."  If you answer "no" to a question like that, even if you avoid a ticket for speeding or DWI, you could get one for inattentive driving.  After I say I don't know why I've been pulled over, the officer will usually give you a reason for pulling you over.  Whether you were speeding, weaving, driving without headlights on (hey, it happens), or even going too slow, they'll come up with something that gave them probable cause to pull you over.  

The questions that comes next is one that people almost invariably answer wrong.  If the officer believes you've been drinking, he'll say something like "I notice your speech is a big slurred.  Have you had any alcohol to drink this evening?"  Most people who have been drinking and are asked this question say something along the lines of "I've had a couple (fill in your beverage of choice here)," believing that if they fess up to drinking a small amount that the officer will appreciate their honesty and let them go on about their merry way.  The proverbial "couple drinks" is a very non-committal amount of alcohol and is a seemingly benign quantity, at that.  What you've actually done by answering in this manner is validated the officer's suspicion that you've been imbibing and given him more than enough reason to ask you to submit to field sobriety tests or a breath test.  In all truthfulness, your answer here may not matter much, anyway.  Minnesota courts have concluded time and time again that things like bloodshot eyes, slurred speech, or even the mere presence of an odor of alcohol are more than enough for an officer to justify administering field sobriety tests.  Regardless of this, your answer to the question of "have you been drinking?" or "how much have you had to drink this evening?" should be no answer at all.  You have no obligation to answer any of the officer's questions after he has your personal information.  I would simply say "I would prefer not to answer that question at this time."  This probably isn't going to save you from being arrested, but it's best to assume that you're not going to avoid that at this point, anyway.  It is best to stay quiet and keep from further incriminating yourself.

After I have refused to answer any questions regarding the amount of alcohol I've consumed, the officer will likely ask me to step out of the car.  You can decline a request to do this, but all that will lead to is the officer ordering you out of the vehicle.  It's best to just comply with this request and step out of the car.  Make sure the door is closed behind you to ensure the officer isn't able to get a clear view of the entire interior of your car.  Even if you have nothing to hide, that is your private space.  Any search they want to do should be done the right way.  Close the door and save yourself some hassle later.

After I've stepped out, the officer is likely to ask me to submit to a field sobriety test (FST).  There are three parts to an FST.  

1) The Horizontal Gaze Nystagmus Test.  This is the test where the officer takes a pen, penlight, or their finger and asks you to follow it while they move it left to right across the front of your face.  What they are looking for here is the way your eyes follow the object.  If your eyes jerk around a lot, or if the jerking around occurs when the eye is within a certain amount of center, it can create probable cause to arrest you under suspicion of DWI.  This is the most effective test to determine whether someone is intoxicated, statistically.  

2) The Walk and Turn Test.  This test is really an exercise in multitasking.  You will be instructed to take a specified number of steps along a straight line by touching your heel to your toe on each step.  While you are walking, you will be given instruction on what to do when you reach your final step.  Usually this instruction is to turn around on a certain foot, turn back around on a certain foot, and continue a specified number of steps in the original direction.  Things the officer is looking for in order to confirm their hypothesis that you are intoxicated are:

  • If you cannot maintain balance while listening to the instructions
  • If you begin before instructions are finished.
  • If you stop while walking to regain balance.
  • If you do not touch heel-to-toe.
  • If you use arms to balance.
  • If you lose balance while turning.
  • If you take an incorrect number of steps.

If you fail 2 or more of these, there exists sufficient probable cause that you will test over the legal limit for BAC.  

3)  The One-Leg Stand Test.  This test is something of a combination of the first two.  It is intended to test your dexterity, as well as your ability to listen and follow directions.  You will be instructed to lift a certain foot about 6 inches off the ground and hold it there for about 30 seconds.  You will be instructed to count out loud while doing this, usually in a specific manner (i.e. one-one thousand, two-one thousand, three-one thousand, etc...) until you are done.  The officer will be looking for you to sway, use your arms to balance you, hop to keep your balance, or put your foot down to avoid falling.  If you do two or more of those things, that's enough for them to arrest you.  

That's it.  Any other tests administered to you are bull.  Close your eyes and touch your nose?  Bull.  Recite the ABC's backwards?  Bull.  Rub your stomach and pat your head at the same time?  Bull.  None of those are part of the Standardized Field Sobriety Test, and while they may help to indicate whether you are intoxicated, none can be used as evidence in court because of their lack of reliability.

In my hypothetical situation, I would choose to decline participating in these tests.  You have Constitutional right to refuse to take the tests.  The officer may say things like "If you decline these, you will be arrested for DWI and tested at the station."  My answer would be, "That's fine," because he's going to arrest me when I fall on my ass trying to walk a straight line, too.  By declining, I'm giving myself a little more time for my blood alcohol content to drop (although, studies on alcohol metabolism show that depending on when you quit drinking, your BAC may actually rise on the way to the station), and I'm depriving him an extra piece of evidence to use against me at trial.  My unwillingness to submit to these tests can't be used against me in trial.

The final thing the officer will likely try to get you to do is submit to a Preliminary Breath Test (PBT).  The PBT is the small, cellphone sized machine that officers use to get an idea of what your blood alcohol content.  I say they use it to get an idea of what your BAC is because these things are not terribly accurate.  Many factors can cause you to have a falsely high reading on the PBT.  Having traces of alcohol in your mouth, having recently vomited, or even having recently used mouthwash can cause your BAC to spike according to a PBT.  My response to the officer's request to administer this test will be (you guessed it!) "no thank you."  Again, they're going to tell you things like "If you don't comply, I'll arrest you," but they're probably going to arrest you either way, and giving them a positive PBT isn't going to help your lawyer's cause when he's trying to challenge your arrest.

After you refuse the FST and the PBT, you will almost assuredly be arrested and charged with a DWI.  You'll be brought to the station/hospital/jail in order to undergo your evidentiary test, which will either consist of a urine test, blood test, or breath test, or some combination of the three.  The urine and blood tests are pretty self-explanatory, but the breath test is a little different than the one you would encounter on the side of the road.  The machine used for this test looks sort of like a big inkjet printer with a keyboard on the front.  This machine is about 100x more accurate than the portable device you would have blown into during your traffic stop.  Generally speaking, it is a horrible idea to decline one of these tests.  If you have an aversion to needles or feel like you will not be able to produce the necessary urine for those tests, you can request the other.  If you choose to decline all three tests, you will lose your driving privileges for no less than one year.  For some context, if you are convicted of a simple DWI with no aggravating factors, you'll only lose your license for 90 days.  If you've got multiple offenses or were more than double the legal limit, that suspension time will go up.  Simply submitting to the tests may constitute essentially giving up, but it's better than the alternative.  Breath tests are, by a wide margin, the most common type of test used by officers.  Blood and urine tests are both subject to chain of command issues (think Ryan Braun), making them less of a sure thing, so officers usually try to avoid administering them.  Many states have rules that state the breath test is the one that must be used unless the suspect is unconscious.  

While this more or less ends your participation in the DWI arrest process, the process itself can be far from over.  While breath tests come back almost immediately, urine and blood tests can take weeks to come back.  During this waiting period, you'll likely have your arraignment hearing, giving you a chance to enter your plea and whatnot.  The trial wouldn't start until the results are back, obviously, so it could give you an opportunity to have your attorney (you should really have a Minnesota DWI defense attorney hired before going to your arraignment) come up with a strategy.  Either way, now that you know what I would do, you'll be equipped with the information necessary to make good decision when dealing with the officer.

An important thing to note is that while you're not required to submit to much of anything, nor are you required to answer the officer's questions (other than the personal info stuff), you don't have to be a jerk to the officer, either.  The old saying that you catch more flies with honey than with vinegar holds especially true when dealing with the police.  While being agreeable and pleasant may not keep you from being arrested, it will at least decrease the wrath you'll catch from the arresting officer.  Police have a difficult enough job without people hassling them or giving them a hard time while they're doing it.  Be polite, be cooperative, but be careful.  

If you have, in fact, not been drinking at all or have consumed such a small amount of alcohol that you are certain you will pass any field tests or PBT, by all means, go ahead and take them.  Just remember that passing these tests doesn't necessarily mean you aren't going to be brought in for chemical tests.  If you are innocent, however, this should be nothing more than an inconvenience to you.  Another thing to remember is that FST's can be difficult to complete under no influence of alcohol and in optimum conditions.  If you throw in a drink or two, wind, ice, snow, rain, and cars whizzing by you on the road, you could easily fail these tests regardless of whether you're actually inebriated.  Proceed at your own caution in this circumstance.

Knowing what to do when you're pulled over under suspicion of impaired driving should not be viewed as a ticket to go out and drink and drive.  The reason it's illegal to drive while under the influence of drugs or alcohol is because you can be a serious danger to not only yourself, but to the other motorists on the roads.  The only sure way to make sure you're never charged with a DWI is to completely refrain from drinking and driving.  There's always an alternative.  Get a sober ride.  Call a cab.  Take public transportation.  Find a way to avoid drinking and driving.  Every time you take your chances by drinking and driving, you not only increase the liklihood that you'll get caught, but also that you'll hurt yourself or someone else.  That being said, people do make mistakes, and it's important to know your rights if you make such a mistake.  

If you or a loved one have recently been charged with a DWI and have yet to hire legal representation, contact a Minnesota DWI lawyer today to get someone working with you to ensure the best possible outcome.  Don't be a victim of your own hesitation.  Get a qualified Minnesota defense attorney on your side today.

As always, no information on this website is intended in any way to be construed as legal advice.  If you or someone you know is facing a situation that requires legal advice, contact a Minnesota criminal defense lawyer today.  Each legal situation is different, so it's important to get advice tailored to your individual set of circumstances.

1 comment:

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