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Island, and
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What to do When Stopped for DUI

Part One

Few criminal situations are more anticipated, thought about or discussed prior to having ever been placed in the position of, than in the case of DUI. Lets face it, most people have made the mistake at least once in their life. In social settings, I am often asked about “what should I do if I’m stopped for a DUI?”. It is an excellent question, and if you are ever investigated for DUI, what you do and don’t do can make a significant difference in the outcome of your case. However, you could fill a book on the “if this” then “this”. This write-up below not meant to be legal advice, but rather a discussion, notes, observations and alternative decisions that could have helped some of the numerous DUI cases I have reviewed.

Let me do the lawyerly thing, by starting with the proposition that each situation is unique and that there is no perfect answer. Notwithstanding, as a blanket rule, exercising your rights is always the most sensible option. But be forewarned, when you are nervously looking at the face of a uniformed officer, in the middle of the night, it takes a lot more strength than you might imagine to politely exercise your rights.

In the State of Washington, there is a standardized approach for investigating DUI cases. In other words, in most DUI investigations, you can anticipate the requests made by a law enforcement officer after you have been stopped. The following is broken down by the standardized investigation steps taken by law enforcement:

The Stop (Driving)

This is the first part of the DUI investigation. The officer observes your driving. Based upon your driving the police officer may decide to initiate a traffic stop. When he activates his emergency equipment (flashing lights) the officer will mentally record how you respond.

  • (i) How long does it take you to notice him?
  • (ii) How long does it take you pull over?
  • (iii) Did you pull over too quickly, slowly, or in an unsafe manner?
  • (iv) Is the location of the stop a safe place or obstructing traffic?

What you do at this stage may or may not be evidence of intoxication. If you take too long to respond or pull over they will use this as evidence of intoxication. If you pull over too quickly or in an unsafe place they will use this as evidence of intoxication. In some respects, you’re damned if you do and damned if you don’t. So the recommendation is simple:

  • (i) Do not slam your brakes when you first observe the flashing lights.
  • (ii) Use a signal when changing lanes.
  • (iii) Move deliberately and within a reasonable period of time to the side of the road (preferable the outside lane).
  • (iv) Choose the safest location within a reasonable distance.
  • (v) Do no pump your brakes as you are coming to a stop (slow and even).
  • (vi) Place your car in “park”, the officer will instruct you if he wishes you to turn your vehicle off.

After you have come to a full stop, calmly wait for the officer to approach your car. Remember to respect that this situation is one of the most dangerous for a police officers. Approaching an unknown vehicle. If they see furtive movement (in your car) as they approach your car (going for a gun, hiding something, or simply trying to find your license) you may be providing them a legal basis to remove you from the car and begin questioning. If they don’t see furtive movement and the stop was based on a minor traffic violation, law enforcement is limited to asking for license, registration and insurance (and running a warrant check).

Initial Contact

Most often people are stopped for minor traffic infractions. However, a good officer will be looking for more when they make the initial contact with the driver. If they can see and articulate (to themselves) things that give rise to a reasonable belief that the driver is breaking the law, they can expand the minor traffic stop into a criminal investigation. It is important to know that at this initial contact the officer is using all his or her senses to mentally record everything they see and smell. In the case of DUI, among the many indicia of intoxication, the officer will note whether your face is flush, eyes watery or blood shot, or whether there is an odor of alcohol in the car. If these indicators exist, there may be enough to begin an investigation into DUI. Notwithstanding, there are things you can do to avoid making your situation worse.

  • (i) Obtaining License, Registration, and Insurance: The very first thing a police officer will ask for is the drivers license, registration and insurance. If you cannot obtain this information in a timely and efficient manner, they will use it as evidence of possible intoxication by marking the mental box that you “fumbled for your license”. If you are like the average person, your license is in your wallet, your insurance in the center console and your registration in the glove box. In the middle of the night whether you have had zero drinks or a fifth, you are going to fumble for these items. My recommendation is that you always carry your registration and insurance in a labeled envelope that can be easily retrieved.

  • (ii) The Comment: Officer will often comment or question you on why they have stopped you. Avoid responding to these comments or questions. Don’t go into lengthy debates or admit to the basis of the stop. A “no” or “ok” will usually suffice. Exercise your right to remain silent. If you are angry or crying it will be evidence of mood swings and intoxication. If you speak too much, you will be providing ample conversation to determine if you have slurred or slow and deliberate speech. If you admit to the basis of the stop, you will be giving up valuable legal issues that might arise in a criminal case.

  • (iii) The Question: After an officer has made his initial observation and detected indicators of intoxication such as odor or bloodshot eyes, he will almost always follow up with the “question”. If the officer see signs of intoxication he will ask: “How much have you had to drink?” or “Have you been drinking?”. I recommend that you speak as little as possible and exercise your 5th Amendment right not to incriminate yourself. That means exercising the very difficult task of not answering that question and not going into long explanations of why you are not answering that question. If your impulse is to talk your way out of a DUI investigation by saying “one” or “two” drinks, it is not original and not going to work. This is the most common answer whether the person has one or fifteen beers. You will do more harm to yourself by lying and providing law enforcement with confirmation of drinking. Limit any conversation to identifying yourself to the officer.

  • (iv) The Instruction: Brace yourself, the officer is about to instruct (ask) that you step out of the car. Listen carefully. If the officer asks you if you are “willing” or “would you voluntarily” get out of the car; the answer is no. However, much more likely is that the officer will passively instruct you out of car. “Would you please get of the car” is not a request and you must comply. Do not get angry with the officer. Whether he is right or wrong the officer is doing his job. Getting angry or upset will only be seen as a lack of emotional control, an indicator of intoxication. For legal reasons, I prefer it when my clients ask politely if the officer is placing them under arrest. The officer does not need to answer this question, so don’t get angry when he or she sternly repeats their instruction to exit the vehicle. Politely comply. I keep emphasizing “politeness”. Not knowing the outcome of the DUI investigation, I can say with certainty that politeness even when exercising all your rights, goes over well with law enforcement, prosecutors, judges and juries. It is a thousand times easier to represent someone who has been decent and polite with an officer then the “angry guy”. The jury is always much more receptive to the “in control, you made a mistake” client, over the “I’m not drunk and out of control, I’m just an A$%” client.

  • (v) Exiting the Vehicle: Exit your vehicle as you would on any other day. However, be sure not to use the door or the sides of the vehicle as support. If you use the vehicle as support, law enforcement will make a note that you needed to steady yourself on the vehicle to walk. You guessed it, evidence of intoxication. So from the top, if the officer hasn’t already instructed you, turn your vehicle off and remove the keys from the ignition.

If you are alone in your vehicle, I prefer my clients lock their vehicle as they exit. Then move directly to where the officer has instructed. Do not speak. Do not engage in small talk with the officer. You are the focus of the officer’s attention and being investigated for a crime. While he is not your enemy, he or she is certainly not your buddy. When you reach the spot the officer has instructed, remain silent and wait for the request, if you haven’t already received it when you were in the car.

The Investigation

If an officer has “reasonable suspicion” that you are operating your motor vehicle while under the influence of alcohol and or drugs, you may be asked to exit your vehicle. Sometimes the officer will make the “The Request” prior to an instruction to exit the vehicle. Either-way, the answer is going to be the same.

  • (i) The Request: Standard Field Sobriety Tests (SFST) – The officer will most likely ask you if you are willing to perform “voluntary field sobriety tests….to see if it is safe for you to drive”. Start with the proposition that if an officer is asking you to do voluntary field sobriety tests he already doesn’t think it is safe for you to drive your vehicle. SFST are divided attention tests. They are designed to test a person’s ability to physically perform and divide their attention between multiple tasks. In other words, to simulate the act of driving a car. The better way to put the officer’s request is…are you willing to perform “voluntary field sobriety tests…so I collect evidence of your intoxication”. Irrespective, the key to these tests are that they are “voluntary”. While I could speak about the accuracy or inaccuracies of these tests for days, suffice it to say, if you are asked to perform these tests, there is a good chance you are going to be arrested for DUI irrespective of whether you perform these tests. While I have seen sober people fail the SFST, I have never seen an intoxicated person pass the test.

  • Refusing the “request” to do voluntary SFST can be used as evidence of “consciousness” of guilt in a trial. However, failing the test is much more damning evidence. My recommendation is that you decline the SFST. More importantly, if you have a disability, injury, or something that you believe would affect the fairness of doing a physical balancing test, you include this in the refusal. Beyond exercising your rights, if there is another legitimate reason for not performing the test make sure the officer hears it, such as:

    "No, I have a bad back, herniated disc, bad knees, inner ear problems, overweight, to old, just had surgery, etc ….."

  • (ii) The Portable Breath Test (PBT): The PBT is a handheld alcohol breath test used in the field. It is not a substitute for the Breath Alcohol Datamaster (BAC Machine) at the station. The PBT also has none of the internal reliability tests that the BAC machine has. It often tends to read substantially higher alcohol levels. In Washington, the PBT is not admissible at trial. However, it is admissible to show probable cause for arrest. If you submit to a properly administered PBT test and your breath alcohol is over the legal limit, you have just thrown away any legal challenges to the officer’s arrest decision. In other words, when the officer asks you if you are willing to provided a PBT sample, the only answer is “no thank-you.” (Do Not Confuse: the answer for the PBT with a possible different answer for the BAC machine at the police station).

  • (iii) Constitutional Warnings in the Field: If you have followed the above recommendations, you have now been arrested on less evidence than law enforcement would otherwise have had. As you are sitting in the patrol car, the officer will most likely read your constitutional warnings, as he arranges for the towing of your locked vehicle. At end of the constitutional warnings, the officer will usually ask you if you understand these rights and then disengage you. Often at this stage they won’t ask if you wish to exercise your rights. It is very important that you follow the next instructions accurately. You must make an unequivocal expression of your desire to exercise your rights. Otherwise, the exercise of rights may be ineffective. So at the end of the constitutional warnings, whether the officer has asked whether you understand or not, you must state: “I wish to speak with an attorney and remain silent.” If the officer did not hear you, politely express this when he comes back into range.

    To exercise the right to remain silent, you actually need to stay silent. If you begin to speak about your case unprovoked by law enforcement questioning, then everything you are saying is admissible in a court of law.

  • (iv) Maintain Control: The officer has placed you in uncomfortable handcuffs and seated you in a cramped backseat. If you have ever been in this position you know it is not pleasant. It is enough to put a cheerful person into a bad mood. Remember! the investigation hasn’t stopped. If you have mood swings (crying or shouting) you are providing evidence of intoxication. Also, after being arrested, people seem to have a sense of release that they can no longer control the outcome of the evening. For some reason this often relaxes people and they become chatty with the officer in the front of the patrol car. While I encourage politeness, avoid the temptation to speak about your evening, to apologize, to have a conversation about anything. Exercise your right to remain silent. The officer is noting everything you say and do. Within less then two or three hours everything you did or said is going to be formalized in a written report. Again, they are not your enemy but nor are they your buddy. Telling the officer that he is cute, is definitely going to make it into his report. Please…remain silent for the entire trip to the police station.