One of the most common questions I’m asked is, what should I do if I’m stopped for DUI?. The answer, while very simple, is sometimes hard to understand. Let’s look at the two main phases of a DUI investigation to see what someone should do.
The first part of a typical DUI investigation involves the officer making a traffic stop on a person. This is the case in over 95% of the DUI arrests I handle. Other types of initial contact ranges from an auto accident where the police arrive on scene, having contact with a person as their home in response to an allegation of hit-skip, or making contact with a person parked in their car after receiving a report of a drunk driver.
For this article, I’ll focus on the typical traffic stop where a person is pulled over for a minor traffic violation. The first thing that is usually going to occur is that an officer will approach the driver and ask for their license and insurance. At that point the officer will probably engage in a brief conversation with the person and if they suspect the person has been drinking will progress into questions like, where are you coming from or have you been drinking this evening. It’s important to note that generally when a conversation begins down that road, the officer will continue into a full fledged DUI investigation.
Here’s a good rule of thumb – you should never lie to an officer (it can be a crime in some instances) but you also never have to make any statements. If the line of questioning is going towards a DUI investigation, you have the right to not answer those questions. A simple, officer I’d rather not answer any questions is completely acceptable. Realize of course that this will probably result in the officer going further into an investigation (just like telling the officer you only had 2 drinks will also result in a further investigation).
Field Sobriety-Testing Phase
At this point most DUI stops progress into the field sobriety-testing phase. This is where the officer has the person step out of the car and take a series of roadside tests. The typical tests administered are the walk and turn, the one-leg stand, and the horizontal gaze nystagmus test. Most people are surprised to find you that you don’t have to take any of these. And the officer doesn’t have to tell you that they’re optional either. You have the right to refuse field tests, and you always should.
If you are at the point where you’ve been asked to exit the vehicle and take field sobriety tests – you are being investigated for a DUI. While the law requires that you exit the vehicle if ordered to do so by the officer, there is no requirement that you take any field sobriety tests – nor should you. These tests are not scientific, the officer rarely administers them correctly, they’re subjective, and nearly impossible to pass. Add in that a person is naturally nervous when stopped by the police and that they are standing on the side of the road with traffic whizzing by in close proximity and you only compound the chances of showing clues that the officer is supposed to look for. Just politely decline to take any field tests. You do not need to give a reason and you do not need to engage in any conversation. Save that for the lawyer to do.
Will you be arrested?
Probably. But remember an arrest is just an allegation and the less evidence you give to the police the more likely your case will resolve favorably. A bad back, arthritis, and nerves – to name a few – can all result in a person failing the field sobriety tests and being charged with OVI. The absence of the tests will only serve to strengthen the defense. I don’t recommend that anyone ever take the field tests – even if that person hasn’t had a single sip of alcohol. There are simply too many problems with these tests. A few that we see:
- Improper administration/explanation/demonstration of the test by the officer
- Improper scoring of the test
- Poor environmental conditions (windy, rain, snow/ice)
- Nervousness from person effecting test performance
- Physical impairments of person (arthritis, bad back, etc.)
- Subjective interpretation by officer
- Lack of scientific validation that poor test equate to either impairment or elevated blood alcohol level
While getting drunk drivers off the road is an important law enforcement objective, having innocent people get caught in the drag net is an unfortunate consequence of zealous enforcement.
Always be smart and have a designated driver or use a taxi or Uber if you are going to be drinking. But for that time when you are stopped and suspected of DUI –remember these two simple points:
- Be polite, but do not make any statements to the officer, and
- Never take any field sobriety tests.
Should I refuse a chemical test if I’m arrested for OVI?
In the next article Should I refuse a chemical test if I’m arrested for OVI?, I’ll look at the question of whether or not a person should ever take a breath test if they’ve been arrested for DUI. The answer may surprise you.