It’s the most common DWI scenario, the Officer stops a vehicle, usually late at night and smells an odor of alcohol emitting from the vehicle. The Officer asks the driver, how much you’ve had to drink, and the driver replies a couple beers. The entire time the Officer is polite and non combative and suggests to the driver, “Can you step out of the car, so I can see if you’re OK to drive." The driver gets out of the car and the Officer starts to go through a bunch of field sobriety tests. The driver will ask the Officer, are these really necessary, do I have to do these? The Officer will respond once again, “I just want to make sure you’re OK to drive, if you past all my tests then you’ll be free to leave." This is however a trick question, the greatest sense of it. The driver certainly knowing they are not drunk agrees to comply with the Officer’s seemingly reasonable requests. So the driver performs the tests and believes they did quite well on them. Then the Officer says, “Will you blow in this breathlyzer? I just want to make sure you’re not above the legal limit and your OK to drive…" The driver complies again, wanting to be cooperative with the Officer, thinking, well if I agree to do everything the Officer wants, then he probably won’t arrest me and let me go home. The driver, however, never goes home and is arrested on the spot for DWI.
Knowing you’re rights when it comes to a DWI stop or any interaction with a Police Officer is vital to protecting you’re innocence and insuring you receive a fair trial and day in court. I mentioned above, that the Officer making you perform these tests is similar to asking a trick question. The field sobriety tests are almost impossible to pass! Even when someone is dead sober, the Officer could find clues and say you failed the test. The reason is that these tests are foreign to us all. The first time you ever receive instructions on how to do the test are on that night, you’ve never had a chance to practice them. Like anything in life, the first time you do something, you usually are not any good until you practice.
The tests are not natural, not fluid, and the testing conditions are extreme and nerve wrenching. For one, the tests are given on the side of the road, cars are screaming by on the road, the Officer is shining his flash light on you, and you are scared to death of being arrested. This nervousness can be construed by the Officer as impairment and can cause someone to fail the test, regardless of impairment.
Next, these tests were formed under the guise of a Federal Government organization in the 1970s! They have been around for over 40 years, have never changed, and have never been updated or refined following new studies and reports regarding impairment. The tests are designed to make you fail and are extremely subjective. The only person testing you is the Officer, who’s job is to arrest people for DWI, so the person judging your performance on the Field Sobriety tests is biased and has a vested interest in seeing you fail.
So the $10,000 question (typical cost of DWI conviction), is what to do if you are pulled over and have been drinking? Refuse, Refuse, Refuse, Refuse every test the Officer asks you to perform. As soon as the Officer stops you, smells alcohol, and you admit to drinking, he is going to arrest you! The Officer will convince you to perform theses tests and blow in his machine under the guise that he wants to “Make sure you OK to drive." However, what he is doing is quite the contrary. He is simply gathering evidence to strengthen his case in court and for the Judge to find you guilty. He will record everything you did on the Field Sobriety tests and the Prosecutor will argue to the Judge that these are all signs of impairment. I have scene this situation play out a 1000 times.
First you must be polite and cooperative the whole time, never raise your voice or get angry, if you do any of this, the Officer and Prosecutor will both say this shows the driver was drunk. When the Officer asks if you have been drinking you must be truthful with him but YOU DO NOT NEED TO BLOW on the side of the road. In addition do not perform any tests. He will ask to check your eyes and have you follow his pen, do not do it, this test is probably the most subjective. The Officer will ask you to walk a straight line, don’t do it. He will ask you to stand on one-leg, don’t do it. Don’t count backwards, don’t say your ABCs, don’t do any tests at all. Simply tell the Officer, that your lawyer advised you not to perform any tests because you do not believe in the accuracy or science behind them. The Officer will try to be very persuasive, he will be polite, nice, and give you no reason not to trust him, but don’t trust him, resist any urge to cooperate with the tests.
If the Officer then arrests you, we can challenge this arrest in court and show the Judge, the Officer did not have enough evidence to arrest you and the DWI should be dismissed. Obviously each case different based on the facts but the story above is in my opinion, the most common scenario for a DWI arrest. So always remember, DO NOT PERFORM ANY FIELD SOBRIETY TESTS.
- Never take any Field Sobriety Tests
- Do not make any admissions to drinking
- If the officer begins to conduct a DWI Investigation, ask him for your lawyer
- Refuse to perform any tests
- Ask the Officer if you are under arrest, being given a citation, or if you are free to leave
- Do not take any breath tests at the roadside
- Contact an attorney immediatly following the arrest
- Contact witnesses after the arrest, to observe any additional testing at the station
- Do Not Consent to any type of Blood Test, Require a warrant
- Do Not Take ANY FIELD SOBRIETY TESTS