I Was Pulled Over & I Have Been Drinking – What do I Do? (Part 1)

It depends… It depends because DWI stops vary and so do the people involved.  Do you think you are over the limit? Are you close? Do you know you are over?  If your blood alcohol concentration (BAC) is 0.08 or more, you are over the legal limit and will be charged with a DWI.

As I have found from people’s reactions to my advice and information, a person’s comfort level in exercising certain rights he or she may have during a traffic stop varies.

In this answer, I am answering as a defense attorney, with my eye on possibly defending this case in court and the various things that help and hurt a defense.

AT THE CAR WHEN THE OFFICER APPROACHES:

• LIMIT YOUR CONTACT WITH THE OFFICER IF POSSIBLE.  You do not have to roll your window down all the way in order to hand an officer your driver’s license and be able to converse with the officer about the traffic stop.  I have read hundreds of DWI police reports and they ALWAYS include the boiler plate language that the officer observed an “odor of alcohol” and “bloodshot watery eyes”.  Rolling down your window only a little bit can prevent the officer from noticing these boiler plate observations that will get you out of your car.
• DON’T VALIDATE THE REASON FOR THE STOP. Try not to admit that you know exactly why you got pulled over, such as going over the speed limit.  This may be difficult if the driving offense was obvious.
• DO NOT ADMIT TO DRINKING.  You do not have to answer this question.  Whether you lie or not is up to you, but there are ways to avoid or answer in a way where you do not admit to drinking.  For example, “You have no reason to ask me that question; I am not going to answer.”

A common misconception is that if a person is cooperative the officer will let something slide or give them the benefit of the doubt.  But, the more common truth is that an officer is just doing his job.  If the facts present themselves that meet the criteria or “tick the boxes” for a possible DWI, the officer will continue with the DWI investigation.

OUT OF THE CAR. KNOW YOUR RIGHTS!

• YOU HAVE THE RIGHT TO REFUSE FIELD SOBRIETY TESTS when the officer asks you to step out of the car and perform some tests.  You need to follow the officer’s instruction to step out of the car, but you can refuse to do any tests. IT IS NOT A CRIME TO REFUSE TO DO FIELD SOBRIETY TESTS.  These tests are difficult for person’s who have not been drinking and a person can fail them for very minor reasons.  Sober police officers FAIL these tests!
• YOU HAVE THE RIGHT TO REFUSE A “PBT” or preliminary breath test on the side of the road.  This breath test is not the same as the breath test at the police station.  A PBT is not evidentiary and cannot be used as scientific proof you were over the legal limit.  IT IS NOT A CRIME TO REFUSE A PBT.
• IF YOU REFUSE THE PBT YOU WILL LIKELY BE ARRESTED.  The catch here is that if you blow a 0.08 or over on the PBT it is probable cause to arrest.  But, it can also be probable cause to arrest if you refuse to take the PBT. If you think you are over or close, refuse.  If you are completely sober or 100% sure you are under the limit, take the test and you will not get arrested.

Although some people may not be comfortable with some of the advice above, it is important that each person knows what rights they have. Interaction with a police officer can be very intimidating, especially for people where it is their first time. Knowledge of the law and your rights allows you to make informed decisions if you are ever in this type of situation.