Chapter 4 DWI Lawyer Bob Keefer: DUI Guilt Myth
CHAPTER 4Let us say you are driving down the road and you see the flashing lights behind you. The first thing to keep in mind is that, as soon as the lights start flashing, the officer will begin collecting evidence for the report. The police report, as we will see, is an important document in a DUI trial, so it is very important how you conduct yourself and how you interact with the police officer. Everything that you do and say from this point forward might make it into the police report, including the reason that the officer pulled you over in the first place, as well as how you stop your car and how long it took for you to pull over. So pull over quickly but safely.
“I’VE BEEN PULLED OVER BY THE POLICE –WHAT SHOULD I KNOW?”
“Why have I been pulled over?”—Probable CauseThe first thing that you may wonder is why you have been stopped. What you should know is that, if the police officer suspects that you were driving under the influence, and pulls you over for that reason, the officer must have had “probable cause” before pulling you over. There are many things that give a police officer the necessary probable cause to pull you over legally for driving under the influence. The most common ones are listed below.
• Driving on or over the lane divide
• Drifting into the other lane
• Making a wide turn
• Making an illegal turn
• Weaving in your lane
• Braking frequently
• Nearly missing an object or another car
• Driving very slowly, generally morethan 10 mph below speed limit
• Swerving
• Driving with your headlights off
• Not making turn signals, or making inappropriate turn signals
• Stopping in the middle of the road for no reason
• Accelerating or decelerating tooquickly
• Following another car too closely
Of course, just because a police officer pulled you over for the way you were driving does not necessarily mean that you were driving drunk. As we will see, providing a non-alcohol related explanation for your driving—while it will not help you while you are on the road with the officer—may be crucial in both your license suspension hearing and your criminal case if you are charged with a DUI.
While you may feel that what the officer is doing is unfair, unreasonable, illegal or wrong, it is never a good idea to badmouth or insult the officer. At best it will make for a very unpleasant experience. At worst it could lead to your arrest. And again, what you say goes into the written report that the officer makes later.
“I’ve been pulled over—what should I do?”Once you are stopped the officer will approach your vehicle to talk with you. He will first ask you to show your drivers license, registration and proof of insurance. You cannot be arrested for refusing to identify yourself, but if you do not promptly provide the documents the officer asks for, it is legal for the officer to search your vehicle in any location within the passenger compartment where he believes a drivers license or vehicle registration may be. If this is something you want to avoid, be sure to have your license and registration in a location where you can obtain it immediately so the officer does not have the justification to search your car.
If he suspects that you were driving while intoxicated, the officer will be looking for sufficient reason to arrest you. From the moment he lays eyes on you he will observe your demeanor and smell the air in the car for any traces for any alcohol. The officer will look for a number of traditional indicators of intoxication, including:
1. Odor of alcohol
2. Bloodshot or watery eyes
3. Slurred speech
4. Flushed face complexion
5. Lack of coordination/fumbling to find your license
At some point he will ask you if you have consumed any alcoholic beverages. At this point, I recommend that you politely tell the Officer that, “I want a lawyer. If I am not under arrest please let me go.”
It is perfectly within your legal rights to politely refuse to answer the questions. The officer might still decide that he has enough reason to arrest you, but simply refusing to answer the question is not reason enough.
But no matter how you answer, if the officer still suspects that you were driving under the influence, he will ask you to exit your vehicle.
“I’ve been asked to get out of the car—do I have to?”If the officer asks you to get out of the car, you must do so or you will be arrested. If the officer pats you down, do not physically resist. He may then ask to search your vehicle. You have the legal right to refuse the search if you choose. You should always refuse.
The officer cannot arrest you simply for refusing to consent to a search of your vehicle. In some limited cases, however, your car can be searched without your permission or a warrant, as long as the police officer has probable cause to believe that you have committed a crime. Even if you think that what the officer is doing is illegal, do not resist. If the officer illegally obtains evidence against you, it cannot be used at trial. No matter what else he does, if the officer has asked you to get out of the car, it is likely because he will ask you to take a field sobriety or breath test.
“I’ve been asked to take field sobriety tests—what do I do?”Politely refuse. “Field Sobriety Tests” (FSTs) are subjective tests designed to determine if you are impaired. The purpose of these tests is to evaluate your motor skills and coordination, as well as your mental attention and ability to process information. You have the legal right to refuse to take a field sobriety test, even if the officer does not ask your consent. A good way to refuse taking a field sobriety test—or anything that a police officer asked you to do—is to say, “I’d like to speak to an attorney first.”
If you decide to submit to a field sobriety test, the officer will ask you to do one or several of the following five tests. Remember to follow instructions and do not start until the officer specifically tells you to.
1. NystagmusIn this test the officer is looking at what your eyes are doing. He will be looking to see if your eyes are wavering or if they cannot smoothly track and follow a finger or a pencil approximately six inches from your nose, as both of these things suggest alcohol impairment. You will “fail” this test if the officer sees your eyes trembling or jerking.
2. Standing on One LegThis test is designed to measure your balance, sometimes while your mental attention is focused on something else. One possibility is that the officer will instruct you to place your hands at your side, to extend one foot thirty inches and count by thousands (“one, one thousand, two, one thousand, . . .”). Another possibility is that the officer will ask you to simply stand erect for 30 seconds without swaying. Finally, you may also be asked to pick up an object off the ground. The officer will be looking to see if you begin too early, lose count, lose your balance, fall over or display poor coordination when attempting to pick up the object.
3. Walk and Turn
In this test, you will be asked to walk a certain number of heel-to-toe steps away, then turn and walk the same number of heel-to-toe steps back. You will “fail” this test if you begin too early, step off the line, lose your balance, lose count of how many steps you took, or put space between your heel and toe.
4. Finger to Nose
This test involves standing erect with feet together, closing your eyes, extending your arms and touching your finger to your nose. You will “fail” this test if you begin too early, have trouble maintaining your balance, miss your nose or show any sign of muscle tremors or miss your nose.
5. The Rhomberg Balance Test
In this test, the officer will instruct you to stand erect, close your eyes, tilt your head back and estimate how long thirty seconds lasts. The officer will be looking for any muscle spasms or tremors and to see whether alcohol might have slowed down your perception of time.
“Did I pass the field sobriety test?”
Whether you pass or fail is based totally on the officer’s personal observations and impressions. Remember, these tests are entirely subjective—they do not conclusively determine whether you are drunk or not. Also keep in mind that the officer asked you to take field sobriety tests because he suspects that you were driving while intoxicated. At this point he has probably already decided to arrest you. It might surprise you that most people, sober or otherwise, “fail” these tests.
There are a number of other factors that influence how you do on these tests, having nothing at all to do with alcohol. How even the pavement is, whether it is gravel or concrete, the volume of traffic passing by (which will likely slow down to stare at you), the amount of lighting available, and the weather (you could be shaking because you are cold, not intoxicated, for example)—all of these things impact how you do on a field sobriety test. In addition, your physical condition may affect the results, whether you are overweight, elderly, or have physical impairments of your limbs, back, or eyes. Even the type of shoes you are wearing might affect the test. Finally, you are probably very nervous, humiliated, angry, and tired.
The important thing to keep in mind, no matter what kind of field sobriety test you take and no matter how you think you did, an experienced defense attorney will know how to ensure that you are not convicted simply because of the police officer’s personal opinion. In the next chapter we will take a closer look at field sobriety tests and their questionable validity as measures of intoxication and impairment.
Preliminary Breath TestsYou should always refuse the preliminary breath test. The other test that you may be asked to take is a preliminary alcohol screening device test (PBT). Just like the field sobriety test, you have the legal right to refuse to take a PBT. However, you are also more likely to be arrested if you refuse to take the test.
Based on the alcohol content of your breath the machine estimates the percentage of alcohol in your blood, which is what determines whether you are “above the legal limit.” However, a roadside breath test is not considered scientifically accurate, so it cannot be used as evidence against you at trial. However, it can be used as evidence at the DMV hearing, which determines whether your license should be suspended. A failed PBT is also a common justification for arrest. We will also scrutinize the reliability of these tests in the next chapter.
“Did I say too much?”—Incriminating Statements or ActionsOne of the most common mistakes that people make when they are pulled over by a police officer is saying too much. It is important to remember that everything you say from the point you are approached by the officer until you are released from custody can, and most likely will, be in a subsequent police report and it may be used against you at trial. You need not say anything to the officer other than to show your drivers license and insurance information.
Once you are arrested, the officer is then required to provide you with a Miranda advisory. A Miranda warning—which most of us know from movies and television—advises individuals of their constitutional right to remain silent, to not answer questions that would incriminate them and to have a lawyer present before answering any questions. The officer is required to read you your Miranda rights because, if he does not, nothing that you say can be used against you in a court of law, making it harder to prove that you committed a crime.
The problem is that most people do not know that they have the right to refuse to answer questions that might incriminate them before they are arrested and read their rights. The rights that are listed in the Miranda advisory are rights that we always have, not just when we are arrested.
Graduated Hampden-Sydney College with BA in History in 1980; Graduated from William & Mary Law School in 1983; private practice in Harrisonburg, VA since 1983 to present. Now mainly representing DUI, reckless driving and persons hurt in motor vehicle collisions.