Mimesis Law
14 December 2019

Cop Tips: Being Stopped for Drunk Driving

Dec. 22, 2015 (Mimesis Law) — In the United States today, one of the worst offenses to be charged with is Driving While Intoxicated (or whatever the local equivalent is called). You see, the Mothers Against Drunk Drivers (MADD) efforts to demonize this offense have succeeded.

Don’t get me wrong, I’m all against people drinking and driving. It was one of the things that I did a lot of as a cop on the street, and I was good at catching drunk drivers. As a matter of fact, I was very good at it, to the point that I was known as a drunk magnet at the department.

Over the years, I was certified as a breath test operator, a Standardized Field Sobriety Test (SFST) practitioner, a mobile video instructor, and an SFST instructor. I don’t think that I had any special abilities, but I recognized the clues for drunk driving and I didn’t ignore them when I saw them. If I smelled an alcoholic beverage on contact with the driver, I pulled them out of the vehicle and checked them further, to see what I could determine.

So as we go into the holiday season, here’s some advice on what to do if you are stopped and are being investigated for DWI. First, unless you have to do so, you don’t want to lower your window any more than you have to do so, but if the officer tells you to roll it down some more, it is usually best to do so. That’s because if the officer feels that it is necessary to remove you from the car for his safety or to conduct his investigation, he is legally entitled to do so.

Second, don’t answer any questions that you do not have to answer, and never answer questions about drinking or how much you’ve had to drink. The less you talk to the officer, the less chance that the officer has to claim that your speech was slurred. The officer is going to try and get you to answer his questions, but you do not have to do so.

Third, under no circumstances should you do any field sobriety tests. Never, not once, ever. The officer will tell you that if you pass, you get to go on your way, but if he’s asking to check your eyes or to do other tests, he’s already pretty sure that you’re intoxicated, he is just trying to build a case against you.

At this point you have done everything that you can do to minimize the evidence against you, and to try and deny the officer sufficient probable cause to arrest you for DWI. And you could still be arrested. I once stopped a young lady who politely refused to answer my questions and declined to do any SFSTs for me. You see, her father was a state district judge and he had told her the same thing that I am telling you here. I still arrested her—but for running the stop sign, not for DWI, and being arrested for a traffic-ticket offense is much easier to clear up than a DWI.

If you are arrested for DWI, the officer will likely ask you to take a breath test, or to provide a blood or urine sample. Unless you have to do so by law, it is in your best interests to refuse to take the breath test or provide a sample. You need to be aware that in thirteen states, it is a crime to refuse these tests if you have been arrested for DWI.

Whether that law is constitutional or not is currently before the U.S. Supreme Court (Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. Levi), but you’ll need to check the law in your own jurisdiction before you make that decision. In Texas, the state will suspend your driver’s license for a refusal, but it is not a separate crime. In some states, the officer will get a search warrant for your blood on a refusal, and if they do, don’t resist as it will only bring additional charges and they will still hold you down and draw a blood sample.

If you do the above, you will have provided your attorney with the best position that you can be in for him to defend you.

That does not mean if you are drunk that you will get off. No, you’ll probably still be convicted if you are truly driving drunk (and you should be), but you will force the state to actually prove its case against you.

The only surefire method to avoid arrest for DWI?

Don’t drink and drive.*

*But even that’s not “surefire.”

7 Comments on this post.

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  • CLS
    22 December 2015 at 9:33 am - Reply

    Greg:

    These “Cop Tips” are great.

    Would you please share more as you are so inclined?

    Best,
    –CLS

  • Scott Jacobs
    22 December 2015 at 2:05 pm - Reply

    “Third, under no circumstances should you do any field sobriety tests. Never, not once, ever.”

    He says this, kids, because the tests are so easy to fail that sober people can’t pass them. The “heel to toe, walk, turn around” thing? I suspect that Greg couldn’t pass it more than half the time when he was a cop.They are ridiculous. Just don’t.

    • Scott Jacobs
      22 December 2015 at 2:08 pm - Reply

      “You need to be aware that in thirteen states, it is a crime to refuse these tests if you have been arrested for DWI.”

      Also, it is my understand that in Illinois, while it is a crime, the punishment for refusing is a 6 month suspension of your license (after which you pay a fee and get it back). If you think it is even remotely possible you will blow over the limit, TAKE THE SIX MONTHS!

      It beats a year of lost license, the massive costs of the treatment you have to take, and if it is your second one Christ help you because that’s 5 years MINIMUM you won’t be driving (and then a massive pile of bullshit afterwards).

    • Greg Prickett
      22 December 2015 at 5:34 pm - Reply

      “He says this, kids, because the tests are so easy to fail that sober people can’t pass them. The “heel to toe, walk, turn around” thing? I suspect that Greg couldn’t pass it more than half the time when he was a cop.”

      Absolutely incorrect. I could pass it all the time, and probably while intoxicated.

      Both the Walk-and-Turn (WAT) and the One-Leg-Stand (OLS) are physical, divided attention tests, while the Horizontal Gaze Nystagmus (HGN) is a physiological test.

      Basically the more you practice the WAT and OLS, the better you get. You get to a point where you do not have to divide your attention between multiple tasks and they are second nature. You’ve practiced, so you perform better. The WAT and OLS are not really effective predictors of intoxication, if the individual is a police officer who administers the test battery on a regular basis.

      The HGN is much more accurate and you can’t fake your way out of it.

      • Scott Jacobs
        22 December 2015 at 5:47 pm - Reply

        The fail points (at least in Illinois) for the WAT are comical – ANY gap between the feet, not doing the turn flawlessly…

        Yeah, practice makes them easy, but most folks don’t drill those tests.

        And I still would fail the OLS – my balance isn’t near what it used to be.

        • Greg Prickett
          22 December 2015 at 6:37 pm - Reply

          The SFST is standardized across the US. The criteria for not walking heel-to-toe is not “any” gap, but a gap of at least 1/2 inch. There are a total of two clues during the instruction phase and six clues during the performance phase. If there are two or more clues present, there is a 68% likelihood that the BAC is a 0.10 or higher. If combined with a score of four or more clues on the HGN, the likelihood increases to 80%.

          All the SFSTs are really designed to do is to provide probable cause, not proof of intoxication.

  • Eva
    22 December 2015 at 2:49 pm - Reply

    Glad I don’t drink anymore.

    I remember back in the day a friend of mine (I was a passenger) and she was pretty much drunk while driving my car. She explained to the cops that stopped us that my apartment was just a few blocks away. They followed us as she drove that car safely back to my house. The cop didn’t even give her a ticket. I’m not saying that it was the best strategy but now it appears that you will have so much to deal with if you are caught doing such things now that it’s really not worth it.