I represent many clients in New Jersey charged with DWI. By the time they get into my office they have already been charged with driving while intoxicated. But I am frequently asked by people what they should do if they are pulled over by the police and they have been drinking.
First and foremost, you should never drink and drive. The best defense is not making the choice to do it in the first place. But if you find yourself in that position, Here are some thoughts. This is in no way a fail safe “guide” or advice. This is just some commentary on police procedure and investigation and what your rights are as a DWI suspect during a police encounter.
Next, make sure that your credentials are well-organized and in a convenient location. This includes your license, registration and insurance card. Police officers will be looking to see if you have difficulty producing this information. They will be looking for your coordination and hand movements as an indicator of possible intoxication. The request for and smooth production of those credential will start things off uneventfully.
Next, always remember the old saying ” anything you say can and will be used against you.” Keep that in mind. It is typically not in anyone’s interest to get in an extended conversation with the police officer who will likely want to engage you in one if he suspects that you have been drinking. This includes questions like: Where are you coming from? where are you going to? Have you had anything to drink or I smell alcohol, have you been drinking?
Your responses to these questions and others will form the basis (in part) for the officer’s probable cause to arrest you. If the officer is asking the questions, there is a strong possibility that he or she already made an early conclusion as to what he believes is the case. Don’t confirm it by becoming talkative. This will give him an opportunity to get admissions, as well as listen to you speak and determine if you are slurring or having difficulty pronouncing words. Remember, you have the right to remain silent. Lying to an officer, or saying things that you should not, will eventually strengthen the State’s case in our opinion. You are under no real obligation to do anything but provide your credentials and acknowledge your identity. Telling the officer that you had a couple of beers does nothing but confirm his suspicion.
If the officer asks you to step out of the car, then there is a strong probability that he will be asking you to perform Standardized Field Sobriety Tests. Once again, you are under no obligation to perform these tests. These tests, if not performed properly, will be used against you later in a trial. You can be convicted of DWI just on your performance of these tests. The Walk and Turn, the One Leg Stand and the HGN or follow the pen test as my clients call it sometimes, are all scientific tests that require adherence to a very particular set of instructions and scoring criteria. If you are injured or have on going balance issues or poor coordination caused by an accident or neurological problems, you should tell the officer. You are under no obligation to perform the tests. It is arguable whether your refusal to do so can be used against you especially if you have a good reason for refusing. Your refusal to perform the tests does not mean that you won’t get arrested. In fact, you very well may be arrested. But ask yourself this, what is the benefit of doing the tests. If you have not been drinking, by all means take the tests. But if you have any doubt about your condition you will have to seriously consider the practicality of this decision. If the prosecutor or judge sees you stumbling around on video, even absent the Alcotest readings (discussed below), there could be a strong likelihood of conviction.
If you are arrested following performance of the tests or your refusal to do so, the police will bring your to the police station to blow into the Alcotest Machine (formerly the Breathalyzer). IF YOU REFUSE to blow into the machine, you are facing an automatic 7 month suspension for refusal. I have beaten many refusal charges, but it is very difficult. And you will be charged with DWI in addition to refusal anyway. So the practical advice is don’t refuse. However, if you have some sort of respiratory issue or digestive problem, you should absolutely make the police aware.
When the police prepare to administer the Alcotest, they must adhere to a 20 minute observation period prior to having you blow. This means 20 minutes of uninterrupted observation by a police officer. It can be two or three officers who each take turns, but it has to be for twenty uninterrupted minutes. This means that if you were to you put anything into your mouth, or burp of regurgitate, or if the officer left the room, or you left the officers sight, the twenty-minute period would be interrupted, and the police would have to start over again.
In addition to the 20 minute observation period, there are a number of other procedural mandates that the police must adhere to. Failure to do so could result in the suppression of the Alcotest readings and the State will not be able to use them at your trial. Failure by the State to prove that the Alcotest instrument was working properly will also result in the readings being thrown out.
In that instance, the prosecutor would have to rely solely on the Field Sobriety Tests and the totality of the circumstance to convict you on what’s called an observation offense. Well, what happens if there are no field sobriety tests and no admissions of drinking? What happens if all the State has is the smell of alcohol, bloodshot eyes, and not much more? The State has to prove the case beyond a reasonable doubt. This is food for thought.