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.*