Question: What should I do if I’m stopped and I have been drinking?

Benson Varghese: I’m going to give you the answer for someone who doesn’t know exactly what their blood alcohol concentration might be, so this is a person who’s had more than a drink and they don’t know if they’re going to be above the limit or not above the limit.

It’s important to remember that law enforcement has a job and that is to gather evidence—to prove if a crime has occurred. That’s their job, and while we’re all taught to respect police officers and very often feel compelled to give them the information that they’re asking for, don’t forget that this is a criminal investigation. It’s no different than a murder investigation where an officer has the duty to go out and gather evidence. That officer is going to proceed even if the murder suspect doesn’t give them a confession, and that’s what you’d expect. Think about a DWI stop the same way. The officer has a job to do, and that’s to gather evidence. You are not obligated to give him any information.

There are certain things that you are required to do. When an officer lights you up to stop you, you have to stop. When he asks for identifying information and proof that you have a license to drive and that you have insurance, you have to provide those to him. You are required to step out of the vehicle because an officer has the ability, and the courts have given officers the ability, to maintain control over the situation—for officer safety so that they can conduct an investigation. And you can ask them why you were stopped and ask for a fair response or expect a fair response. But it’s important to remember to be polite, because you’re not going to gain anything by arguing with the officer. And you have to remember that at some point, a jury is going to be watching your actions and while you might have a reason to be upset, know that a prosecutor might look at you being upset and say, “That’s not normal for them; they are acting that way because they’re intoxicated.” So remember that someone’s going to review this at a future point.

When you step out of the vehicle, the officer is going to ask you to do some field sobriety test, and he may have already asked you some basic questions. You don’t have to answer those questions. He will definitely ask you where you were coming from, if you’ve had anything to drink, what time your last drink was, etc. The reason he’s asking these questions at this point is because you don’t have any constitutional protections or you don’t have the right to an attorney at that point, because you’re not in custody and you’re not under arrest. So what the officer is doing is gathering as much information as he can for his investigation, knowing that you haven’t been informed of any rights that you might later have.

You don’t have to answer those questions, and the most polite way to decline answering questions might be to say, “I have a friend who’s an attorney and he said to never answer questions.” It doesn’t make you look bad; it doesn’t sound like you’ve got an attorney on retainer because you’re about to do something terrible. It’s just a frank answer. You’re being polite about it.

The officer’s then going to ask you to do field sobriety tests. You’re not obligated to do them. I’ve spent a long time being a prosecutor, and prosecuting driving while intoxicated offenses, and I’ve spent time as a defense attorney, protecting people who’ve been accused of intoxication-related offenses. Those tests are very easy to fail. I won’t go as far as to say that they’re designed to fail, as many people might say, but they’re very easy to fail and I often do demonstrations and have people from an audience come forward and do those sobriety tests and everyone acknowledges that people who haven’t been drinking can and do often fail those tests. The bar is very low to fail the test. You have to show a very few number of clues. So as a result, my advice is to decline, (again, politely) and say you don’t want to do those field sobriety tests. The officer cannot force you to answer questions or to do those field sobriety tests.

However, if he’s developed probable cause that you were driving while intoxicated, he can arrest you. Probable cause means specific, articulable facts that an offense has occurred. So he might have bad driving facts: if you swerved, if there was a 911 caller that said that you were driving erratically. He might develop signs of intoxication just by observing you: red, bloodshot watery eyes, odor of alcohol coming from your breath, you were slow to take out your license, or you’re anxious. Those are all things that are very often in the report—things that he’s watching for.

Remember that throughout the process, it’s his job to gather evidence. You don’t have a duty to give him evidence. He’s going to arrest you if he has probable cause for an arrest. He’s going to take you back to the station. He’s going to read you a warning requesting a sample of breath or blood. It’s going to be his option as to which one to ask for. Again, I recommend that you politely decline to provide the specimen that he’s asking for. The primary reason for that is: if you consent, there are very few ways to overcome consent later. If you say no and the officer does his job, which is to gather evidence, and he goes and gets a warrant for your blood, I can look in an affidavit for a search warrant for your blood and see if he made any mistakes—if he truly had probable cause for your blood; because if he didn’t, that can be attacked. If you consent, it’s going to be very hard to overcome your consent.

He’s going to go do his job, take you to a hospital (more than likely), and get blood. That blood is going to be tested to determine what your blood alcohol concentration is and depending on that, the state will decide to proceed with the case or not proceed with a case. Throughout that process, remember he has a job to do. Let him do his job and be polite. You don’t have a job to do—other than to watch out for yourself.