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“What to do if you get stopped for a DWI”

A common question

The traffic lawyers at MacDowell Law Group, P.C. are often asked the question “If I was ever stopped for drunk driving, what should I do?” It's a valid question that raises questions about your Constitutional rights as well as your Virginia law obligations. The question balances your desire to not be arrested and not make the situation worse, against your inclination to cooperate with and not appear evasive to the police. When considered before you are in situation of possible driving after drinking alcohol, the question of “what to do if” involves strategic considerations of getting through a DUI traffic stop while doing the least damage possible to yourself. The worse time to ask this question is after-the-fact, sitting in a lawyer's office having already been charged with DWI, wondering whether your choices leading up to the arrest helped or hurt you.

Be smart about your choices, & know your rights!

The below tips are general pieces of advice that the lawyers at MacDowell Law Group, P.C. would give in response to this important question. Of course, every situation is different. From the many hundreds of DWI we have handled, we could likely come up with a counter-example or two where a particular situation called for a different course of action. But, learning about your rights and obligations will put you in a better position, if you are stopped by a police officer who begins with a brief comment about the odor of alcohol coming from you. Whether you choose to exercise your rights is up to you.

Don't drink & drive

Tip #1: The best, guaranteed way to avoid a DWI/ DUI conviction is to never drive or operate a vehicle after consuming any alcohol. Call a cab. Use Uber. Do not sit in the driver's seat of any vehicle after drinking alcohol.

Many people think that driving after having a couple of drinks is fine. But, there are a number of potential pitfalls. First, though it is unlikely that 1 or 2 standard-sized drinks will cause the average person to test over the legal limit of 0.08, if a judge believes that alcohol impaired your driving, you could be convicted. Second, when an officer smells alcohol and hears the driver claim “I only had 1 or 2 drinks, officer,” you're likely headed on a slippery slope of requested field sobriety tests and a preliminary breath test, as well as roadside police questioning. Why risk it being in that situation? Third, compared to legal fees to hire an experienced DWI defense attorney, taxi fare or an Uber o r Lyft charge is always magnitudes cheaper than hiring a good DWI lawyer to defend you. Fourth, at some point, the alcohol itself will begin to affect your judgement and ability to assess the situation, and each additional drink often leads to bad choices.

Be quiet

Tip #2: If the police stop you, be quiet and do not answer the cop's questions.

During a traffic stop, keep your hands where the officer can see them, obey any lawful commands given by the officer (such as “exit the vehicle”), and be ready to produce your license and registration upon the officer's request. Beyond that, you are not required to answer the cop's questions. From the moment the officer walks up to your car window, every single you say can be used against you. Your words, whether in response to the officer's questions, or volunteered by you, will impact whether you may later be found 'not guilty' or not of any DWI charge. Aside from content of your words, how you talk could be used against you, because the officer is listening to see if your words appear to be slurred or thick.

If the officer asks “Do you know why I stopped you tonight?,” the truthful answer is “no.” Only the officer knows why he personally did. Believe it or not, the officer's subjective reason why he stopped you is legally irrelevant to the lawfulness of the traffic stop. And, a judge could watch at trial a police cruiser video of your driving, and then legally justify the traffic stop for reasons never even thought of by your officer, as long as the judge sees facts that would warrant the stop by a reasonable, objective officer. You could share your guess with your officer on why he stopped you, but it's better to answer “no.” A savy officer may follow-up with what sounds like a fair chance to explain yourself: “So, any reason why I saw you swerving like that?” Your answer: “Officer, I have nothing to say.”

For nearly all other informational questions, you can respectfully answer “Officer, I have nothing to say.” Short, simple, polite. A good DWI officer will gently poke and probe with questions like “Where are you coming from?,” “I can smell some alcohol, so be straight with me... how many drinks did you have?” To these questions, your answer should be a polite, calm “Officer, I have nothing to say.” Or, you can shift the focus by politely responding “I do not want to answer that without a lawyer present.” A persistent officer may try to elicit responses from you by saying things such as “I just need to make sure you are fine to keep driving down the road,” or “if you only had a couple, you should be o.k.” Your answer: “Officer, I have nothing to say.”

Of course, some officers may get agitated, and maintaining this advice surely will be a challenge. If the officer becomes frustrated or saracastic because you are exercising your rights to not answer him, you might be tempted to finally let him question, in hopes he'll calm down and let you go. Resist this urge and politely repeat your position.

Do not attempt field sobriety tests

Tip #3: Field Sobriety Tests are voluntary. Do not volunteer to attempt them.

Most officers will create a mood that field sobriety tests [“FST's”] must to be done by you. Wrong! The officer might say “Hey, I need you to do some field tests, o.k.?” Your answer: “If it's my choice, I choose not to do them.” An officer may mix some hope into his request for FST's: “I just need to make sure you can get home safe tonight. You should be fine if you only had a couple.” Again, do not attempt them.

From the officer's (and prosector's) view, the purpose of FST's is to develop evidence against you for two reasons: to justify the arrest, in case your defense attorney later in court challenges probable cause to arrest you; and to prove you were under the influence of alcohol.

The three main FST's are:

  1. the “Horizontal Gaze Nystagmus” test,
  2. the “9 step walk and turn” test,
  3. the “one-legged stand” test.

These are the only FST's studied and approved by the National Highway Traffic Safety Administration (“NHTSA”). But, some police use other tests, depending on their training, including counting numbers backwards (for example “74 down to 55”), touching your thumb to fingertips, saying a portion of the alphabet (for example “C to T”), and others.

Some people may disagree, and expect they can pass the FST's and see them as a chance to prove you are fine to drive. The problem remains that FST's scoring by the officer can be fuzzy and imprecise. Though a well-trained officer will strive to fairly and accurately judge your FST's, reasonable minds can and will differ over the numerous scoring criterion. Furthermore, few people appreciate what the officer is looking for when you do these. You might think “just walk the line really straight,” but in reality the officer is critiquing you on at least 15-20 separate items of the '9 step walk and turn' test. Plus, you'd be trying to listen, remember,and follow all directions; performing under the stress of a roadside detention with an implied threat of arrest; all while desperating concentrating despite multiple officers & police cruisers present, often along a major public road with traffic going by. Bad idea to test your skill in such situation.

Decline to take any roadside, preliminary breath test

Tip #4: You have a right under Va. Code §18.2-267 to refuse the roadside “PBT.” Do not blow.

Many officers are extremely adept at convincing wary drivers that it’s okay to blow into a portable breath analyzer (otherwise known as a “PBT”) because it “can’t be used in court,” etc. In reality, however, this statement is misleading. While the PBT results themselves are not admissible in court strictly as to the precise level of blood alcohol in your system (because these devices are notoriously inaccurate), the results are admissible if your lawyer attempts to challenge the sufficiency of the officer’s “probable cause” under the Constitution to arrest you. In many cases, the officer may not have sufficient probable cause, at least not without some PBT results. So the same answer applies here. Do not blow into one of these devices at the scene for any reason. The results can only hurt you.

Agree to sign paperwork acknowledging you have been charged

Tip #5: If charged and arrested, you will have to sign any Virginia Uniform Summons

If the officer gives you a ticket, regardless of whether you agree with the charge, be polite, cordial, and sign where indicated. Do not cop an attitude (no pun intended) and refuse to sign anything put in front of you. There is nothing wrong with signing under language indicating that you acknowledge receiving the ticket, and agree to come to court if you are required to do so.

A lawful arrest for DWI, under “implied consent,” requires a breath or blood test. However, you may choose to refuse such tests.

Tip #6: If lawfully arrested for DWI, you are likely required under VA law to provide a breath or blood sample, under penalty of being charged with an additional offense of Refusal. But, you may still choose to refuse.

In VA, generally, it is a violation of law to refuse to give a breath sample once arrested for DWI. Why? Under the law, when you obtain a driver’s license and operate a motor vehicle on a public roadway, you are considered to be agreeing to be tested for alcohol, in the event you are lawfully arrested. This idea is legally referred to as “implied consent.” In Virginia, those convicted of “refusal” first offense face a mandatory 12 month loss of license, with no opportunity even for a restricted license to drive to and from work.

But, despite a possible Refusal charge, you may still chose to refuse to agree to breath and blood testing after arrest. You will likely be charged with Refusal, but the prosecutor's case against you on DWI will generally be weakened because there will be no breath or blood tests. However, in some VA jurisdictions, after you refuse to take a post-arrest breath or blood test, the police can apply for a Search Warrant to compel you to take a breath or blood test.

Exercise your rights politely

Tip #7: Be respectful and polite to the officers and personnel at the jail. While it is entirely appropriate to exercise your Constitutional right against selfincrimination, it is not appropriate to do so in a rude or obnoxious manner. There is no excuse for being rude or argumentative with the officer (even if he or she is argumentative with you), and it can only harm your case later on.

*The information provided in this brief, limited article is for generic informational purposes only. It does not constitute providing legal advice. Proper legal advice is given only after an attorney communicates with a client or prospective client about a legal matter, so that the attorney can apply relevant law to your specific facts and circumstances. The above suggestions may or may not be appropriate for your legal situation. It is best to take action and make legal decisions only after having a private consultation with an attorney. Please contact an experienced attorney at MacDowell Law Group, PC, for the full extent of your rights and responsibilities.*

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