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.
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