DWI Frequently Asked Questions

The following is a good plan to follow in the event that you are stopped for a DWI.

What should I do if I am stopped?

Most importantly, stay calm and think rationally. Next, don't forget that police officers keep our streets safe by doing their job and should be appreciated. However, accusing you of DWI is merely the officer's opinion. His or her opinion can be influenced by any number of factors including human error and your manners. Therefore, it is imperative that you are polite. The easiest way to find yourself in a confrontation leading to an arrest is to be blatantly rude.

What should I do when the officer turns on his lights behind me?
In a controlled fashion, move over into the right lane and then onto the shoulder of the road or into a parking lot where you can safely stop your car. Turn off the engine and the radio. Maintaining control and obliging the officer's request will point away from any mental impairments, such as intoxication.

What should I do next?
Be sure that your license, registration and proof of insurance are handy. Get them ready as the officer approaches your car.

In order for a police officer to stop you, there must be what's called "probable cause" or some reason for the stop communicated to you. It is usually a simple traffic violation such as speeding or having a taillight out that causes the stop. It is onward from here that DWI charges occur if the officer believes that the driver is intoxicated. In order for it to be considered probable that a crime has been or is being committed, the officer must have evidence. However, he only needs the amount that would be required in order to win a civil suit, or preponderance of the evidence (51% certain) as opposed to proof beyond a reasonable doubt like in a criminal trial.

If someone is held at the scene on less evidence than "a reasonable and communicated suspicion" or arrests a person on less evidence than "probable cause", he violates that person's constitutional rights not to be unreasonably seized. In that case, any evidence obtained would be inadmissible from the prosecution's case.

If I am asked if I have had any alcoholic beverages, should I say yes?
Generally, alcohol can be smelled, so even if you have had just one drink, admit to it. This honesty right up front will make the officer more likely to listen to you. Besides, if alcohol is detectable, denying that you have had anything to drink makes you less credible.

If asked, should I be truthful about how many I have had, and over how long of a time period?
It depends. If you admit to having any more than two drinks, it is likely that you will be arrested for DWI. It gets especially difficult to assess whether or not you are intoxicated when the officer does not consider how long it took you to have those 3 drinks, per se. Consuming three drinks in 45 minutes is much different than three drinks over an entire afternoon.

An option is always to simply not answer the questions at all. Unfortunately, sometimes, non-intoxicated people have been arrested and made to pay a substantial quantity of money for bond, automobile towing, and attorney's fees to mention a few, just to clear their names.

What should I do if I am not going to answer?
The Fifth Amendment to the Constitution affords you the right not to incriminate yourself. Kindly ask the officer why you were stopped and whether or not you are under arrest. If you are, you have the right to see an attorney before answering any other questions. Let the officer know that you would like to do that before he or she questions you anymore. If you are asked to take a field sobriety test, mention again that you would like to be advised by your attorney on if that is a good idea or not. You are not refusing or agreeing to take one, you'd just rather keep all of your bases covered with counsel first. However, if you are told to get out of your car, you must oblige.

If the officer says that you are not under arrest, then ask if you are going to be given a traffic ticket, and if you will be allowed to leave afterwards. If the officer says yes, continue to be courteous and quiet. Do not volunteer any information of any kind. If he asks about your consumption of alcohol again, kindly tell him that you choose not to answer any other questions besides those regarding the traffic offense you are being stopped for.

In the event that the officer tells you that you are not under arrest but cannot leave, the best thing to do is to inform the officer of your desire to obtain the advice of a lawyer before answering any more questions. Don't forget to be polite. By doing this, you have caused the officer to make a choice: either he must now choose to let you go or to wait for you to contact an attorney, in effect, extending his investigation at the scene. If he lets you go, drive cautiously away.

If he prolongs the investigation, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. By remaining silent and waiting for an attorney to be present, you make it more difficult for the officer to reasonably seize you. In other words, it is not considered an admission of guilt to use your constitutional right not to self incriminate.

In any event, if and when you find yourself in the classic DWI situation (where you're being held for a DWI investigation but you're not yet arrested) it is best to be polite. You should invoke your right to remain silent and to have an attorney present so as to not accidentally incriminate or convict yourself. This way, you are letting the officer do the best he can with the evidence he can legally find.

What is the field sobriety test?
The standard sobriety test is issued by the police officer who pulled you over. It includes:

1. the horizontal gaze nystagmous (HGN) test;
2. the one-leg stand test;
3. the walk and turn test.

According to the researchers from the National Highway and Traffic Safety Administration who developed these tests, someone who fails the tests has an alcohol concentration of greater than .08. These tests are still debated as to their accuracy and validity.

If I am arrested and brought to the police station, should I do any of the sobriety tests in front of a video camera, which includes a Breathalyzer and answering more questions?

First, inform the officer, and all officers you come into contact with, that you want to remain silent and not incriminate yourself until you can contact an attorney and have a private consultation with him regarding the things the officers will ask you and ask you to do. Remind the officers that you are neither refusing nor agreeing to cooperate, but that your decision to do the tests and answer the questions depends upon the advice you receive from your attorney.

Sometimes you may be told "you can't have a lawyer yet". This may or may not be a valid statement depending on the conditions of your case, but, you won't know that until you are allowed to speak with a lawyer. The best thing to do is to remain very polite but still firm in your desire to speak to an attorney.

When the police let you the use the telephone, immediately use it and call any attorney you know. If you do not know one, look in the yellow pages to find one. An important piece of information is that most law offices forward their calls after business hours, so you could very well get connected to an attorney at his or her home.

When you reach an attorney, be sure that you can speak to him in private, otherwise, the attorney-client privilege is breached and the officer is violating your right to an attorney. You must be allowed to speak to your attorney in private and tell him the situation so he can properly apply the applicable laws and advise you correctly.

It is imperative that you do precisely what your attorney tells you to do as far as answering questions and being cooperative in any way. In regard to the breathalyzer test, we don't recommend taking it, no matter what any other lawyer tells you. It has been known to be unreliable. In addition, it is impossible to preserve the breath sample, which proves your guilt or innocence. We do not advise taking a test that cannot be performed again or evaluated again in order to prove it's validity a second or third time, if necessary.

We believe that a person would have to be drunk in order to take the Breathalyzer test, and by not taking it, helps the case that the person is of sound mind. There has been serious debate regarding that machine's own manufacturer who does not guarantee it suitable for any particular purpose, which includes breath testing. Therefore, only a drunk, uneducated, or coerced person would submit to a breath test where, if he or she failed it, might receive a stiff legal penalty which could include confinement and severe fines on top of a driver's license suspension, insurance consequences, and attorneys' fees. The alternative, meaning refusing to take the breath test, might result a ninety day suspension, which is far less severe. If and when you do refuse to take the breathalyzer, your license will be suspended and a temporary one will be issued. Make sure to petition the court to grant you an "Occupational License" during your suspension which lets you drive to and from work. After all that, there may be an investigation, a plea and even a trial, but that all depends on your specific case and your attorney.

The goal for us is to examine the case and do the best we can to clear your name of the charge, thereby wiping the slate clean.