What to do if you are stopped by a law enforcement officer after you have been drinking.
Do the simple things first.As soon as you see the LEO behind your vehicle, check and note your speed. If you have gum or mints in the car and can put them in your mouth without the LEO noticing, do so. When the LEO's overhead lights and/or siren come on, signal, gradually slow down and come to a complete stop well off the road in a safe location (giving the LEO plenty of room to approach your vehicle without worrying about traffic). Put your vehicle into Park (or neutral if a manual transmission), put on the parking brake, turn on your emergency flashers, roll your window half way down and turn the engine off. Get your documentation ready before the LEO approaches your window. You'll need your driver's license, registration and proof of insurance. Ideally, you should keep these in a place where you know where they are and they are easily accessible. LEOs love to make notes in their police report of how a suspect fumbled while trying to get his/her information out.
Be careful what you say.When the LEO approaches your window, the first thing s/he is likely to do is ask for your documentation--lucky you, you already have it out and at the ready to give to him/her. If you have the ability (many BlackBerry and other phones or PDAs do), then *record the conversation*. Now you do have to be careful with this. You MUST inform the LEO that you are recording the conversation (at the beginning). You don't need permission, just give notice. Next s/he is going to ask you, "do you know why I stopped you?" Answer no. It does you no good to say anything more than, "no." "Maybe I was speeding," is not helpful, nor is any other answer. At that point in time, the LEO should tell you the reason s/he stopped you. Don't engage him/her.
If the LEO makes any statements about you weaving in between (or within your own) lane or if the LEO asks if you've had anything to drink tonight, DO NOT ANSWER.
As soon as the LEO goes down that path you need to do the following things...
First question for YOU to ask.As soon as the LEO starts making statements about your driving and/or asking you questions about whether you have been drinking, you need to ask him/her the following questions and say nothing else:
(1) "Officer, am I free to go?"
Now, you most likely are not going to get a straight answer to this question from a LEO. S/he will hem and haw and say something like, "well, I just want to make sure you're safe to drive tonight." Or, "I'm doing this for your safety." Or any other explanation, perhaps accusing you of having something to hide or the like. DO NOT ENGAGE HIM/HER. Repeat the question, if you have to: "Officer, am I free to go?"
Second question for YOU to ask.The next question to ask is:
(2) "Officer, am I under arrest?"
Again, the LEO is not going to give you a straight answer. They're trying to get information out of you, and you don't want to give them any ammunition for a potential future case against you.
When you ask this question, the LEO has to make a decision. Does s/he have enough information or evidence to arrest you for DUII. If you've done everything on this list (and assuming you haven't been driving over all three lanes or hit seven parked cars, etc.), then the answer is likely no, s/he does not have enough information. Again, the officer will try to get you talking and avoid the question. STICK WITH IT AND SAY NOTHING ELSE. Insist on an answer from him/her.
You want an attorney.If the cop continues to go down the questioning road, do not give him/her anything. Next state, "Officer, I do not want to talk to you any further without my attorney present." That should (hopefully) be enough to shut him/her up.
Again, at this point in time, the LEO has to make a decision--do I have enough evidence to arrest this person now or not?
Again, if you've been following these steps (and haven't told him/her anything), then s/he probably doesn't.
NEVER do SFSTs.Never do Standardized Field Sobriety Tests ("SFSTs"). Let me repeat that. NEVER. It will only provide evidence to support the LEO's case. You will never pass them (even if you've had nothing to drink). SFSTs are *designed* for people to fail them. You are not required to do them and you never, never should.
As an aside, if you've been following these steps, it shouldn't ever get to the point where s/he is asking if you'll agree to do SFSTs.
Stick with it.Stick with it.
The LEO is going to try and get you to offer more information, either through your actions or words, and will use that against you. That is their job. Do not make it any easier for them.
Stick with the questions outlined above. Don't say anything, other than asking the two key questions and making the statement that you don't want to answer any questions without your attorney present.
Should all that fail.Don't worry about it. If you've not offered any verbal information and haven't done any SFSTs, the LEO is going to have almost literally no case against you. If s/he decides to arrest you anyway, call an attorney from the jail and get advice from him/her about whether you should take a breath test--that is a topic for an entirely separate Legal Guide.