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What you need to do if you are stopped for DWI./DUI

Posted by attorney Fareesh Sarangi

This guide has many important tips one should follow in any jurisdiction when confronting a traffic stop, but there are sections that impart Georgia specific advice. When the advice is specific to Georgia, I have inserted a “GA" in the section to highlight that.

Please note that these opinions are developed from having defended over 100 DWi/DUI cases, but the opinion of other lawyers may differ. This guide should not be constituted as legal advice.

I. The Stop – What to Do, and What Not to Do

If you are ever stopped by an officer in a traffic situation, there are several things you can do to make the interaction smoother and safer. It begins by acknowledging that police officers have dangerous jobs, and they approach every traffic stop with a heightened sense of security. You can make them more at ease, ensure the traffic stop is as safe as possible for all parties, and accumulate some goodwill, by following a few simple steps:

Turn on your inside dome light. This will allow the officer to easily see inside your vehicle as he approaches.

Have your registration card and proof of insurance within reach. You should have these ready and in-hand, along with your driver's license. when the officer approaches so you can minimize the need to engage in conversation.

Leave your seat belt fastened. The last thing you want to deal with is having an officer ticketing you for not wearing your seat belt, even though you were, because you unfastened it before he approached the vehicle.

Leave your hands on the steering wheel at 10 and 2. This hand position allows the officer to easily see where your hands are as he approaches, and eliminates any fear that you may have a weapon.

Have the driver's side window lowered if weather permits.

Now that the easy stuff is out of the way, we can get to the heart of what happens during a DWI/DUI stop.

Rule #1: The police who pulled you over for suspicion of drunk driving is NOT your friend. This sounds obvious, but I am consistently surprised by how many people start chatting with the officer who approaches the car. When an officer pulls you over and suspects you have been drinking, he is going to approach the car and strike up a conversation with you. How's your night? Where are you coming from? Do you know why I pulled you over? He is not making idle conversation. From the moment he approaches your car, he is building his case against you. Can he smell alcohol, even if faint? Are your eyes bloodshot or dilated? Are your eyelids droopy? Do you slur your words? When answering questions about where you have been and whether and what you have been drinking – are you evasive? Nervous? Do you shift in your seat? Do you stumble over your words? There is a very good chance your every move and word is being recorded either by a device on the officer's person or in his vehicle.

Rule #2: You will not talk/cry/flirt/charm your way out of the arrest. See Rule #1 for why! When an officer comes to your window, he has very likely determined he is going to arrest you. He is now just looking for more evidence that he can show a jury to absolutely bury you. So what do you do? Sit there like a mute? Well – yes, sort of:

First, be polite. Because you were wise and had your license and registration ready and hand it over to the officer as soon as he approaches, before you are asked, you have already helped put him at ease.

Second, do not answer ANY questions related to alcohol consumption. It's fine to say, “I'm headed home" or something innocuous to that effect, but do not get into any specific details about where you were (“at dinner" is perfectly sufficient), or what you consumed/ate, etc. If you are feeling ill or are tired, you should share that information only.

If the officer questions you regarding alcohol consumption, you should decline to answer the questions and ask if you are free to leave. Of course you're not free to leave – don't get excited over the possibility he may say yes! You are asking to establish a later argument that the officer “seized" you in the context of the Fourth Amendment. I promised this guide was aimed at non-lawyers, so I won't bore you with legalese, but the context governing what you are asked depends on whether a reasonable person would feel they were free to leave or not. The more intrusive the situation, the more information the officer must have beforehand to justify that level of intrusion. By asking whether you are free to leave, you are establishing that this is a “custody" situation (if you are still confused, trust me on this one and just ask the question!)

NEVER agree to allow the officer to search your vehicle. Again, be polite and tell the officer you would be happy to allow him to search your vehicle if he allows your attorney to be present (sensing a pattern?).

The reasoning behind much of this advice is to help you protect constitutional rights you probably don't even know you have, but will be deemed waived if you don't aggressively enforce them. So, whether you have anything damning in your vehicle or not, whether you only had a glass of wine at dinner, consenting to a search and answering questions regarding alcohol consumption will hurt you more often than it will help.

Rule #3: NEVER agree to perform physical sobriety tests. These are the tests where the officer wants you to touch your nose, balance on one foot, etc. The officer may request you take it roadside or at the station. Nobody – and I mean NOBODY ever “passes" this test. Everyone who takes this test fails it, and gives the officer mountains of evidence to use against you. He will sit in front of the jury and talk about all of the dozens of “indicators" that you were intoxicated based upon your performance. It will all sound terrible to a jury, when it is nothing more than biased observations of a biased test. There will very likely also be a video of you performing difficult physical challenges with which you are not familiar, while under a tremendous amount of stress, wearing imperfect shoes, when you are probably very tired (since most DWI/DUI stops take place late at night, or in the early morning hours). This combination is a recipe for looking “drunk" to a jury, and that's why police try and bully you into performing the tests. If you are asked to perform a physical sobriety test, you should simply say, “I'm very tired and I am not familiar with the tests. I'll take them if I can have my lawyer present." Again, the officer is never going to let you call your attorney, but it establishes you are tired (sleep deprivation can explain many physical characteristics that are often falsely attributed to alcohol consumption), you are polite, and you are willing to take the test (with the reasonable request they let your attorney be present). All of these will be important attributes later in your case. There is no legal penalty for refusing the physical tests.

Rule #4: NEVER agree to take the roadside breathalyzer. These handheld breathalyzers are even less reliable than the official Intoxilyzer 5000 (which is a piece of crap!). Politiely decline the test and don't fall subject to false promises (if you blow below .08 the officer will release you - he will not!).

If the officer still decides to arrest you, which he likely will, the steps you have just taken will go a LONG way towards helping your DWI/DUI attorney fight your case and get you the best possible outcome!

*Stay tuned for Part II of this guide coming soon, entitled "S@*$! I've been arrested. Now what?" coming soon!

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