PRACTICAL TIPS WHEN YOU'RE STOPPED FOR A SUSPECTED DWI/DUI OR GENERAL TRAFFIC STOP
This guide will educate and give you some practical tips on what you can do when you're stopped for a suspected DWI, DUI or general traffic stop. These are some of the rights that you may exercise when interacting with law enforcement.
WHAT TO DO WHEN YOU'RE PULLED OVER BY A POLICE OFFICERImagine driving along and you see lights in your rearview mirror and you hear sirens. Suddenly, you're gripped with fear because you've had a few drinks. The officer starts to make his way to your driver's side window and proceeds to request your driver's license, registration and insurance information. You don't know what to do and you start to worry about what will happen.
First, you should try to remain calm. I realize that this may be difficult in this particular situation but you should do your best to not show any fear or worry because an officer may detect these emotions. Second, you should always be courteous and respectful because officers are no different than the rest of humanity. If you insult them or cause them to fear for their safety, they will likely hold it against you in some way. Third, if you've had something to drink or you've taken drugs (illegal or legal), you should say as little as possible. Remember that an officer pulled you over because of a suspected traffic offense. He already observed your vehicle speeding, failing to maintain a lane, failing to signal, etc...And while it's true that he may be incorrect in the belief that you violated the Vehicle and Traffic Law, at that moment, he believes you committed one or more of those traffic offenses. The officer may already have some evidence of intoxication or impairment if he observed you swerving or doing anything erratic in your control of the vehicle prior to the stop. Now, at the time he approaches your window, he may be looking for additional signs that you're intoxicated or impaired. Some of the things he's looking for are (a) an odor of alcohol or drugs on your breath and (b) slurred speech. This is why it is so important to say as little as possible. Think about it...the more you speak, the more opportunity you're giving the officer to detect whether you have an odor on your breath and/or slurred speech.
So now that the officer is near your window, what do you do? First, as I stated above, you may keep the conversation polite, respectful and brief. The officer will typically ask, "Do you know why I pulled you over?" This is a trick designed to get you to incriminate yourself. The officer hopes that you say something in response like, "I know I was speeding," or "I'm sorry I was swerving," etc... The officer will use these admissions against you because it legally supports his justification for pulling you over in the first place. The better course of action is to say shrug your shoulders and say nothing or at the very least, don't admit that you are aware that you were committing a traffic offense. Second, the officer will start to look for clues of impairment/intoxication. He will most likely ask, "Have you had anything to drink tonight?" Remember, you do NOT have to answer his questions. You have a 5th Amendment right to not incriminate yourself. In response to this, you may say, (a) nothing or (b) I would like to speak with a lawyer. In New York, you have an indelible right to counsel. Once you demand to speak with an attorney, an officer can still continue to investigate but he may not interrogate you any further.
WHAT HAPPENS AFTER YOU DEMAND TO SPEAK WITH A LAWYER?As stated above, in NY, you have an indelible right to counsel. By saying, "I wish to speak with a lawyer," the officer should no longer interrogate you. However, this does not mean that the officer cannot ask any questions or that he cannot ask you to perform physical tests to determine whether you're intoxicated or impaired by the use of drugs and/or alcohol. In other words, asking for an attorney merely requires that the officer not ask you questions that may incriminate you. However, you should be aware that an officer may still ask your pedigree information. Pedigree information is biographical questions: name, date of birth, address, etc...There is a word of caution here. As part of their investigation, officers quite often will ask if you're injured, whether you've taken any drugs and/or alcohol and whether you suffer from illnesses like Diabetes. These questions have been held by courts to be completely acceptable even after a suspect has asked for an attorney. The reasoning for upholding these questions is that the Courts feel that it's important for the officer to be made aware of the suspect's medical and physical condition in case there is a medical emergency. For instance, if the person has ingested drugs and he passes out, an officer may alert medical personnel to the fact that the suspect has drugs in his system. Obviously, this information may save a suspect's life. But in the vast majority of cases, there is no life threatening emergency that necessitates asking those questions. So because those questions are legally allowable, as you may have guessed, a suspect's responses are quite often used against him as evidence of guilt. So when an officer asks at the precinct, "have you taken any drugs or alcohol within the last 24 hours," if the answer is yes, rest assured that that statement evidence will be used against you. So what should you do? Again, you have the right to not incriminate yourself. You may merely continue to request speaking to an attorney and politely advise the officer that you will not answer any questions without the aid of counsel. Moreover, you shouldn't sign anything without reading it first and you may even wish to refuse signing anything until you speak with a lawyer. Lastly, you should try to note the name of the officer and the time that you requested an attorney so that later on, if the government argues that you made incriminating statements, there is a chance that those statements and other evidence may be suppressed as having been elicited in violation of your constitutional right to an attorney.