Countermeasures at a DWI Stop: the Party Question

Is it a crime to drink and drive? Of course it is not.  But there are people out there – like MADD people – who appear hellbent upon changing the laws to bring back the Alcohol Prohibition, one step at a time.

It used to be “drunk driving” was a crime. Then in the 1970s the criminal laws were expanded to include “per se impaired driving laws.”   Per se roughly translates from the Latin to “the thing itself” or “by itself.”  A per se drunk driving law is a law that makes driving with an arbitrary alcohol-level a crime – even if the driver is not drunk, not impaired at all. That’s why you don’t hear the term “drunk driving” much anymore.  But why should it be a crime to drive when driving skills are not impaired?

Ok.  So the laws are unfair, and morally bankrupt – punishing the innocent and their families for no good purpose.  Fine.  There it is.  So how can you protect yourself and your family from this potential injustice?

What can a person do during a DWI stop to protect their rights?

This is mostly a question that criminal defense lawyers hear at a party.  Why?  Because almost all people stopped and later charged with DWI didn’t do any of these things.  But it can make for great conversation at a party.  There are a few different approaches and answers to the question.  So let’s narrow our hypothetical, and provide one.

Since most people stopped for a possible DWI have an alcohol concentration of less than 0.15, have no priors, and have not exhibited impaired driving conduct – let’s start with all of those assumptions, as well as assuming Minnesota laws.  Given the low speed limits these days and the most drivers travel faster than the speed limit most of the time, let’s assume a police officer stops the driver for speeding late one Friday or Saturday.   The police squad car take-down lights are visible in the rear-view mirror.  Now what?

The Police Officer Approaches the Vehicle

Police are trained to observe all of your actions and note any that could be interpreted as supportive of suspicion of impairment (and ignore the rest).  At this phase these include:

  • odor of alcohol
  • eyes – “bloodshot, watery”
  • couldn’t find or fumbled with driver’s license and insurance card
  • admitted drinking, coming from a bar, a party

What are some potentially effective countermeasures, then? If the window is not open, or open about an inch or so – that is plenty to pass the drivers license and insurance card through, but not enough to expose the odor of alcohol.  You can refuse to do lower the window to force the officer to make a forceful command to do so, making it difficult for them to argue you did so voluntarily.  When speaking to the police officer through the almost closed window, the driver can avoid eye contact.  This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.  It’s a good idea to have the drivers license and insurance card in hand immediately after stopping, well before the police officer walks up to the vehicle to request those.  They are in your hands already, which are in plain sight on the steering wheel.  If asked “have you been drinking tonight?” you are not required to answer or answer responsively.  It is a bad idea to lie, for many reasons.  It is also a bad idea to admit facts the officer can use to build “probable cause” to ask you out of the car, or for arrest later.

If you were stopped for speeding, the police officer should just write you a speeding ticket and send you on your way – unless you give him or her probable cause or reasonable suspicion to justify asking you out of your vehicle.

Police ask you to step out of the car.  Now what?

If you use the car or car door for support when getting out or walking, they will note that as suspicious.  So don’t.  They will ask you to walk behind your car, in front of theirs.  Their squad car lights will be on full bore.  They will ask you to perform field exercises they like to call “Field Sobriety Tests.”  These are not scientifically valid, though the government claims otherwise.  Sober, trained police officers “fail” these “tests.”  How will you “pass” them?  And who is your judge?  The police officer!  What to do then?  Do not perform field exercises when asked to do so.  Do not do “Field Sobriety Tests!”  Common ones include:

  • Nine step walk and turn
  • One leg stand
  • Recite the alphabet, backwards etc.
  • Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
  • Walk a straight line

You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them.

“Preliminary Breath Test” (PBT)

Minnesota statutes authorize police officers to require a driver to blow into a PBT machine – a portable breath-alcohol machine only under certain conditions where there is a basis to suspect DWI or selected other alcohol-related offenses.  Don’t worry about whether those preconditions exist.  Your lawyer can do that later if need be.  What is important is that a PBT machine report of 0.08 or more can provide probable cause to arrest for DWI, and so can “refusal” to perform a PBT. Refusing a PBT is not a crime.  That would only provide probable cause to arrest.  One can imagine a logical person, knowing that, deciding to refuse the PBT if they felt sure they would end up with a PBT report of well over .08, for example .20 or more.  That person might feel they would have nothing to lose by refusing – since they would be arrested either way.  Compare that to a person who believed they would get a PBT report of less than 0.08.  That person would be foolish to refuse it, since it could result in their not being arrested.

Keep in mind that the little PBT machine on the side of the road, is not the same as the big, evidentiary breath-alcohol machine at the police station.  If a person is arrested, they can be asked to submit a sample for alcohol testing again, even though they already submitted to a PBT.  The PBT report is not admissible in a criminal DWI trial because they are too unreliable and inaccurate.

If arrested, then what?

Every step further in the chain of events described above brings the driver closer to arrest (unless the PBT is less than 0.08).   If the PBT reads too high, that and the rest will be followed typically with handcuffs and the back of the squad car.  Then normally the arresting officer will wait for back up or a tow truck, and leave for the police station once either arrives.  Talking is not a good idea at any point, including while in the squad car.

At or near the police station (or hospital for a blood draw), the police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.  The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.

It is always, always, always – a good idea to call a lawyer first!  The police are required by law to help you do so.  If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.  You should always make every effort to call a lawyer in this situation – even if you are still sitting in the squad car in handcuffs!  Tell the officer you want to call a lawyer.   This part is usually recorded – a good thing.

The other important right is secret in the sense that it is never mentioned in the “Implied Consent Advisory” by the cop.  what is it?  It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.”  Say what?  You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. In this situation, the arrested person should always, always, always request an Additional Test.  If you do, the police are only required to give you a phone to use.  You can use the phone to call whoever you need to call to arrange for an additional test.  See the midnight DWI jail call to a Minnesota lawyer blog post for more on this issue.

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer

8 responses to “Countermeasures at a DWI Stop: the Party Question

  1. Thank you so much for giving us this information. I don’t drink at all nor do I do any drugs so I am not worried about being arrested for DWI. Even so, I always appreciate knowing what my legal rights are in every condition as I know that a person can be arrested when they haven’t committed a crime and if they say the wrong things they can be convicted even thought they are innocent. I am so grateful for everything you defense attorneys do. I am 67 y/o and disabled with a bad back so I am not going to go to law school but if I was young and healthy that is what I would do. Abuses of the Constitution and passage of unconstitutional laws has increased tremendously during my lifetime. Since Obama has become the President, unconstitutional laws and abuses of power have reached epidemic proportions! Again, thank you so much.

  2. A very good read. Its good to know what our rights are. Thank you for the posts.
    Susan

  3. If I thought I were over the legal limit, and the officer asked whether I had been drinking, I would say, “I want to speak with a lawyer. He would say., “We are not yet at that point yet”. I would say, “I am”. He would say, “Get out of the car”, and I would. He would say, ‘Are you refusing to do tests?” I would say, “I want to talk to a lawyer.” I would not say : “No, I want to talk to a lawyer”, just. “I want to talk to a lawyer”. He would then ask, “Are you refusing a PBT?” I would say, “I want to talk to a lawyer”, He would arrest me, and then at the station I would call a lawyer. He would arrest me anyway.
    They cannot use your request for a lawyer against you in a jury trial, and you have nothing to gain by doing tests he will surely say you failed, and which you probably will fail. Try to retrieve your license before he gets there, and do not look at him directly or speak a lot, as it is likely on tape. Your mantra is, “I want to talk to a lawyer”.

  4. Tom – Thanks for publishing the most comprehensive post I’ve seen on this topic.

    It seems that despite the DOT’s National Highway Traffic Safety Administration’s recommendation not to rely on “bloodshot, watery eyes” as an indicator of impairment, cops continue to use it as a basis for arrest.

  5. I found Albert’s comment to be very interesting. He assumes that if he is not impaired, he will not be arrested, and this is just not the case. If you are driving a car late at night, and someone is in the car with you who has been drinking, then when you roll the window down all the way, the “odor of an intoxicating beverage” will be detected by the officer (from the passenger). If you are tired and your eyes are red, you will be out of the car and requested to do tests. Albert is disabled with a bad back, so he will probably not pass the field sobriety tests, and will be arrested for driving under the influence of alcohol.

    Impaired driving is a serious problem, but so is arresting and convicting people who are not impaired. Those who are factually innocent need to understand how they can avoid getting swept up in the ever wider net that is being cast to “catch” offenders.

    Innocent people are arrested all the time. For impaired driving charges, the consequences begin to be assessed before a trial. In many states, you lose your license, and for many that prevents the accused from earning a living.

    Lets get the drunk drivers off the road, but spare the citizen who is not impaired from the crucible of punishment, which is not deserved. This is what attorneys like the author are trying to avoid. Thanks for the well expressed article.

  6. Great list, it is important that people understand that they do have rights.

    • Albert Nygren

      Tom Workman, Thank you for commenting on my comment. I do not assume that if I am not impaired that I won’t be arrested. In my comment, I said that I know that innocent people can be arrested and convicted because of a number of things. That being said, I appreciate your comment. I will in the future act in accordance with the principles in this article because you are absolutely correct. Because of my bad back, I would fail a field sobriety test and could be arrested because of that and possibly convicted.

      I have a niece who is an assistant prosecuting county attorney and so is her husband. She does not deal with criminal cases at the present time but her husband does. I asked him awhile back if his decision to prosecute someone depended solely on whether he could make a case or not, or did his belief in the innocence or guilt of the person enter into his decision.

      He said that his belief in the innocence or guilt of the person rarely was a factor in his decision whether to indict the person or not! I can understand on a logical basis why he made his decisions that way but for the sake of peace in the family, I didn’t tell him how terrible I thought that was, that even if he thought the person was innocent, if he could make a case against the person, he would indict him/her and bring the case to trial.

      I suspect that his attitude is common among County Attorneys and District Attorneys. This is just one of the reasons that I appreciate this blog and comments from people like you, Tom, so much. Thanks again.

  7. Yes, this subject matter is the topic of party conversation. Very good post for ensuring the rights of the driver late at night. What do you think the cops reaction will be be a refusalt to answer the question of whether someone has been drinking? Would it be advisable to ask what serves as the basis for the question?

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