As St. Patrick’s Day approaches, an unfortunate consequence of the festive holiday is drunken-driving arrests. As attorneys, we know how serious the consequences of a DWI/DUI conviction can be — suspension of license, fines, probation, a stain on your record, and even jail time.
For this reason, I’m often asked what someone should do if they’re pulled over on suspicion of DWI/DUI. Many don’t know that some symptoms of nerves — stuttering, fumbling items, an inability to walk in a straight manner, and short tempers — may be confused by an officer as signs of intoxication.
For this reason, it’s important to empower clients with knowledge so their nerves don’t betray them during a traffic stop.
1. Have your paperwork ready. It’s a known fact that police officers are going to ask you for some key documentation: license, registration, and insurance card. The quicker and more effortlessly you get it, the less likely they’ll think you’re drunk.
It also prevents the chances of you “fumbling.” What’s fumbling? It’s when you drop your wallet, license, etc. after being asked by an officer to demonstrate said material. As most DWI/DUI attorneys know, the police officer will often cite “fumbling” of documentation as evidence of intoxication.
2. Be polite. Police officers are human beings –- the nicer you treat them, the more likely they are to return the kindness. This doesn’t mean you answer all of their questions; rather, it means you politely refuse to answer when necessary and address them as “Sir,” “Ma’am,” or “Officer.”
3. That leads me to my next suggestion: You have a right to be silent. Why? Because the nature of the crime and indicators (such as slurred speech) may incriminate you. Therefore, unless it’s the ordinary “booking questions” (what’s your name, address), you don’t have to answer.
If the officer asks you “how much have you been drinking,” you could invoke your right to remain silent or, if you’re able, advise the officer, “I’ve been consulted by an attorney not to answer those types of questions.”
And please, don’t say, “two beers” (the most common answer). For some reason, drivers think this doesn’t sound bad to an officer, but as attorneys, we know any incriminating statement can and will be used against you by the officer and State’s Attorney.
4. To take or not to take the preliminary breathalyzer? Here are some things to consider when deciding whether to give a breath sample.
First, you’re not obligated to do so. See Transportation Art. §16-205.2. Second, the scientific accuracy of the preliminary breathalyzer is less than reliable for a whole slew of scientific reasons (in another article, I may expand on this topic).
Now, if you’re arrested for DWI/DUI, you may be asked to give a breath sample at the station house. If you’re arrested, you may be asked to give a breath sample at the station house. If you choose not to, you will face MVA penalties, such as a 120-day suspension of your license (you face 45 days suspension if the blood-alcohol content is lower than .15).
Therefore, a driver may refuse a breath sample on the street with little repercussion, but their rights are restricted considerably at the station. That notwithstanding, giving a breath sample at the station is not a black and white decision — that possibility should involve a discussion with an experienced attorney.
5. The same goes for field sobriety tests. Specifically, participating in the tests may hurt you should your case go to trial. Why? Nerves, the type of clothes and shoes you wear, the amount of hours you’ve been driving, physical disabilities, and even the geography of the testing area can all affect the outcome of the results.
In fact, in one of my cases, an individual was tested on a gravelly area with an incline while wearing high-heeled shoes. Because she could not walk in a straight manner or complete a one-leg test to the testing officer’s satisfaction, she was cited for DWI/DUI.
Nevertheless, there are risks to refusing to take the field sobriety tests, namely, the police officer may take you to jail should they find probable cause of DWI/DUI. That notwithstanding, because you chose not to take the field sobriety tests, they may have less evidence against you.
6. The most important piece of advice is get an attorney. This isn’t “Judge Judy” or “The People’s Court” –- the consequences of a DWI/DUI conviction can be severe and should not be chanced by a cavalier attitude.