It can happen to anyone – you look up and see the flashing red and blue lights in your rear view mirror. You get that sinking feeling in the pit of your stomach as you think back over your evening. After the initial pleasantries the officer gets to the one question you have been dreading – “Have you been drinking tonight?”
The impact this one question has on your future depends entirely on what you do next. The most important thing to know is that there are requirements that an officer must meet in order to provide probable cause for the arrest and subsequent determination of intoxication level.
There is no single “right way” to handle this situation. Each DWI stop is unique and influenced by multiple factors that can either lead to an arrest or not. You are probably thinking “What, a lawyer failing to give a direct answer? No way.” Believe me, I understand the incredulity. Fortunately, based on my experience, I can provide guidelines that have helped others in this situation.
I’ll explain in further detail in later blogs, but the immediate response to the officer should be the truth if it will not lead you to incriminate yourself. Do not lie, but do not elaborate. However if you have had anything to drink and may be impaired, you have the right not to incriminate yourself. The best way to do so is by saying and doing as little as possible. If you might be impaired, it will probably result in your arrest for driving under the influence regardless of what you do because the police will arrest you with even the slightest evidence of intoxication as a matter of public interest. To put it another way, it is in everyone’s interest to make sure the streets are free from intoxicated drivers. If there is a possibility that you are intoxicated, then it’s better to be safe than sorry. So the battle you are fighting at this point is not “I don’t want to go to jail”, but “How do I aid in my defense to prevent a conviction for DWI.”
One of the best ways to prevent yourself from a conviction of the offense is being aware enough to provide as little evidence as possible to the police and prosecutors. You are your own best witness at trial because the police are trained to put you in situations that accentuate your incapacity and make it easier for the jury to find you guilty. From the minute you are stopped, you must assume that your actions and answers are being recorded. Do not provide details as to quantities or timelines. Leave your answer as short as possible. If the officer requests that you get out of your car you must comply, however, you do not have to perform any further tests. If the officer asks you to perform a field sobriety test (walk in a straight line, follow a light with your eyes, say your alphabet in reverse, etc.), take a breathalyzer test or have your blood drawn, you should respond by politely asserting “I respectfully choose not to take your tests.” Once you have refused the test it is imperative that you then remain silent unless specifically asked additional questions. If they continue to ask questions, you should continue to respectfully respond that you are choosing to refuse to take the test or answer their questions. Rinse and repeat as necessary.
An essential part of this formula is you must respect the officer. Failure to do so only escalates the situation and usually puts you in a far worse position. I can tell you that the officer is most likely not targeting you and is not getting bonuses based on the number of DWI arrests he or she makes. Officers have a difficult job and you are frequently much better off simply showing them courtesy by complying with the instructions above.
IMPORTANT NOTE – If you refuse to take a breathalyzer or blood alcohol test, your license will be subject to an automatic suspension regardless of your actual intoxication level. There is some risk, to taking this approach, but there are ways to deal with these scenarios if they arrive. All of which will be discussed in future blogs.