Once police start asking you questions, you should immediately recognize that you are a DWI suspect. The questions will typically be about how much alcohol you consumed and where you are coming from and/or going to. This line of questioning is typically done before they arrest you so your statements will be admissible in court (Miranda protections only apply after you have been placed in custody). Many people think they can talk their way out of it, but they are wrong! Be very careful about what you say and how you say it.
Do not answer questions about the following matters:
- When you had your first drink
- When you had your last drink
- When you had your last meal
- What type of drinks you consumed
- How many drinks you consumed
- What your normal drinking pattern is
It used to be the smartest thing to simply refuse to cooperate and ask for a lawyer, but evolving police tactics have thrown a wrench into that plan. Now, if you refuse to do police “sobriety” tests (I put that term in quotes because it is highly debatable as to whether the “tests” police are trained to use can effectively sort out intoxicated people from someone who just has naturally poor coordination), many agencies will apply for a search warrant to take your blood. This goes for first offenders too. If granted (which it almost invariably is), they will take your blood without your consent. Yes, that is legal. If you haven’t had that much alcohol, then that may not hurt your case, but if you have, it can make your case much more difficult to win. It is much easier to defend a case with poor performance on balance tests than a blood test.
Remember to always be polite and courteous—you are being videotaped. Try not to say or do anything that could be used against you later. Be quiet and don’t fall asleep when you are in the back of the car on the way to the police station—this part of the arrest is being recorded too.
The 3 standard field “sobriety” tests (SFST) are the Horizontal Gaze Nystagmus Test (“Eye” test), the Walk and Turn and the One Leg Stand. Although they are called “tests,” you are not told what you are being graded on and you are not allowed to practice. To make things worse, you get no credit for good performance. Instead, you only lose points for improper performance. These “tests” are thus unfairly designed.
The most important thing to understand is that if the officer gives you all of the tests, YOU ARE GOING TO JAIL! We have never seen an officer go past the “eye” test and then release somebody. Similarly, don’t think that if you get taken in and blow under they will release you. THEY WILL NOT RELEASE YOU EVEN IF YOU BLOW UNDER! They will simply say that you must be intoxicated on something besides alcohol. Keep this “big picture” in mind and behave accordingly. If you do blow, you have a statutory right to a independent blood test within 2 hours to verify the accuracy of the test. They will not tell you about this right.
The reality of it is that we are approaching zero tolerance for drinking and driving. If you get stopped after you have been drinking, whether or not you are intoxicated, the odds are extremely high that you will be arrested. If you are cognizant of these basic things, you will be in the best position to get a dismissal or a not guilty verdict.