What to Know when Stopped for DUI/DWI

The easiest way to avoid a DUI/DWI is to not drive while under the influence of alcohol or another inhibiting substance. However, traffic stops for DUI/DWI happen all the time, and uninformed people tend to get themselves into trouble that is avoidable. Whether you see potential for getting stopped for DUI/DWI in the future or you have recently been stopped/arrested for DUI/DWI, it is good for you to stay informed of what you and the officer legally can and cannot do.

This information is vital even to those who have a reliable attorney because you are not entitled to a DWI attorney or advice of counsel unless you are arrested or placed in custody. If a police officer conducts a traffic stop of your vehicle, this is regarded as a temporary detention and not an arrest.

Field Sobriety Tests

Common Field Sobriety Tests:

• Horizontal Gaze Nystagmus (HGN) Test: Tests for the involuntary jerking of the eyeball when following an object that is associated with inebriation.
• Walk-and-Turn Test: Tests for imbalance associated with inebriation by making the subject walk in a straight line, turn, and walk in a straight line again.
• One-Leg Stand Test: Also tests for imbalance by making the subject stand on one leg, with the other leg held six inches off the ground, while counting aloud.

You can refuse a field sobriety test. While consequences for refusing a field sobriety test are not as concrete as those for refusing a breathalyzer test (for which you receive an automatic license suspension), you may still face an arrest if the officer has enough reason to believe you are over the legal limit.

If you believe that you are sober and can pass the tests, you should perform them. But be aware that these tests are being videotaped and are difficult to perform even without consuming alcoholic beverages…

For the one-leg stand test, you will likely also be asked to keep your arms to your sides and count from 1001 to 1030. Some police officers ask you to count backwards. The walk-and-turn test has you walk heel-to-toe while counting a fixed number of steps without using your arms for balance. Even if this test sounds easy to you, it is not how people naturally walk and its level of difficulty may take you by surprise.

We recommend that you always refuse the eye test since it is not reliable and it cannot be duplicated. This test relies more on the officer’s opinion and may result in charges brought against you based on subjectivity. If you do decide to refuse and of the tests, remember that you are being taped and should be polite and respectful at all times.

Blood and Breath Alcohol Tests

Neither one can be taken without your consent. If you decide to take one of the tests and fail it, your driver’s license will be suspended for 90 days and you will be giving the police additional evidence to prove that you were driving while intoxicated. However, if you refuse to take a breath or blood test, your driver’s license will be suspended for 180 days, and the only evidence against you will be the arresting officer’s opinion that you were intoxicated.

Additionally, if you take one of the tests and score above 0.15, you will be charged with a Class A misdemeanor instead of a Class B misdemeanor. Since your license will be suspended either way, if you are unsure of your intoxication level, it makes sense to decline to take the tests, which gives you a greater chance of beating the DWI case in a jury trial.

However, it is important to remember that if you are arrested, the police may get an evidentiary search warrant signed by a judge, which allows a medical person to draw your blood to test your blood-alcohol level. The police will sometimes obtain a search warrant for a blood draw when a driver arrested for DWI has refused to take a breath test. Your lawyer can challenge the adequacy of the warrant and attempt to get the results of the blood test suppressed and kept out of evidence. If the officer obtains a warrant for your blood you should not resist.