Is it a crime to drink and drive? No, of course it is not. But some people out there – like MADD people – who appear hellbent on bringing back the Alcohol Prohibition; one step at a time. Do you know how to best handle a DWI stop?
It used to be “drunk driving” was the crime
Then in the 1970s, the legislature created “per se impaired driving laws.”
Per se translates from the Latin to “the thing itself.” And Courts hold that non-impairment evidence is irrelevant under these laws.
That’s why you don’t hear the term “drunk driving” much anymore. But why should it be a crime to drive if driving skills are not impaired?
A per se drunk driving law makes driving with an arbitrary alcohol-level the crime – even though the driver is not drunk; not impaired at all.
Ok. So the laws are unfair – punishing the innocent and their families for driving unimpaired. Fine. There it is.
So how can you protect yourself and your family from this potential injustice during a DWI stop?
What can you do at a DWI stop to protect your rights?
This is a question that criminal defense lawyers hear at a party. Why? Because almost all people stopped and later charged with DWI didn’t do any of the following things. But it can make for great conversation at a party.
There are a few different approaches and answers to the question. So let’s narrow our hypothetical, and provide one.
We know that most people at a DWI stop have:
- an alcohol concentration of less than 0.15,
- no priors, and
- not exhibited impaired driving conduct.
So let’s start with all of those assumptions, as well as assuming Minnesota laws.
And given that most drivers travel faster than the low speed limits most of the time; let’s assume a police officer stops the driver for speeding late one Friday or Saturday.
The police squad car take-down lights are visible in the rear-view mirror. Now what?
The Police Officer Approaches the Vehicle
We train police to observe all of your actions, and note any that could support suspicion of impairment. And they ignore the rest. At this phase these include:
- odor of alcohol
- eyes – “bloodshot, watery”
- couldn’t find or fumbled with driver’s license and insurance card
- admitted drinking, coming from a bar, a party
What are some potentially effective countermeasures to a DWI stop, then? If the window is open about an inch – that is enough to pass through the drivers license and insurance card; but not enough to expose the odor of alcohol. You can initially refuse to lower the window. This forces the officer command you to do so; making it difficult for them to argue you did so voluntarily.
When speaking to the police officer through the almost closed window, the driver can avoid eye contact. This prevents the officer from being able to observe the cliché “bloodshot watery eyes” they imagine come only with drinking.
It’s a good idea to have the drivers license and insurance card ready in hand immediately after stopping. Do so well before the police officer walks up to the vehicle to request them. They are in your hands already, which are in plain sight on the steering wheel.
Be careful about what you say
If asked “have you been drinking tonight?” at a DWI stop, you need not answer or answer responsively. It is a bad idea to lie, for many reasons, so don’t. And it’s a bad idea to admit facts the officer can use to build “probable cause;” to ask you out of the car, or for arrest.
Where does that leave you? Silence, or change the subject.
If a speeding stop, the officer should just write you a ticket and send you on your way; unless you give her reasonable suspicion to justify asking you to get out of your vehicle.
Police ask you to step out of the car. Now what?
If you use the car for support when getting out, they will use it. So don’t. They will ask you to walk behind your car, in front of theirs. Their many squad car lights will be on full brightness.
They will ask you to perform field exercises they like to call “Field Sobriety Tests.” These are not scientifically valid, though the government claims otherwise. Sober, trained police officers “fail” these “tests.” So how will you “pass” them? And who is your judge? The police officer!
What to do after a DWI stop, then?
Do not perform field exercises
Do not do “Field Sobriety Tests!” Common ones include:
- Nine step walk and turn
- One leg stand
- Horizontal Gaze Nystagmus (follow the pen or finger with eyes only, without moving head)
You cannot be required by law to do any of these. It would be a foolish mistake to willingly do any of them.
“Why won’t you do them?” “A lawyer told me that I don’t need to, and shouldn’t.”
“Preliminary Breath Test” (PBT)
Minnesota statutes authorize police officers to ask a driver to blow into a PBT machine – a portable breath-alcohol machine. But the law requires certain conditions, where there is a basis to suspect DWI or selected other alcohol-related offenses. Don’t worry about whether those preconditions exist at the side-of-the-road DWI stop. Your lawyer can do that later if need be.
A PBT machine report of 0.08 or more can provide probable cause to arrest for DWI. And so can “refusal” to perform a PBT. Refusing a PBT is not a crime. But would provide probable cause to arrest.
“Should I refuse the PBT at a DWI Stop?”
So a logical person, knowing that, might decide to refuse the PBT; if sure they would end up with a PBT report of well over .08, for example .16 or more. That person might feel they would have nothing to lose by refusing – since they would be arrested either way.
Compare that to a person who believes they will get a PBT report of less than 0.08. That person would be foolish to refuse it, since it could result in their not being arrested.
But be aware that the little PBT machine at the DWI stop; is not the same as the big, evidentiary breath test machine at the police station.
And after a DWI arrest, police ask for a sample for testing again, even though you already blew into a PBT. The PBT report is not evidence in a criminal DWI trial, because it’s too unreliable and inaccurate.
If arrested after a DWI stop, then what?
Every step along in the chain of events, brings the driver closer to arrest (unless the PBT is under 0.08). If the PBT reads too high, arrest follows with handcuffs and the back of the squad car.
Then normally the arresting officer will wait for back up or a tow truck. And then leave for the police station once either arrives. Talking is not a good idea at any point, including while in the squad car.
At or near the police station (or hospital for a blood draw); police normally read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.
The most important is your right to consult a lawyer before deciding whether to submit to chemical testing.
Pre-test Right to Legal Counsel
It is always, always, always – best to call a lawyer first! The law requires police to help you do so before a breath test. If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.
You should always make every effort to call a lawyer – even if in the squad car after a DWI stop! Tell the officer you want to call a lawyer. This part is usually recorded – a good thing.
Exception: If police get a search warrant for a blood or urine sample; they might not assist you in calling a lawyer first. But when in doubt, always ask to call a lawyer, anyway. Your lawyer will thank you later for preserving your potential rights.
Right to an Additional Test
The “Implied Consent Advisory” read by the cop does not mention the other important right. What is it? It is your Constitutional right to exculpatory evidence, as manifested in your statutory right to an “Additional Test.” Say what?
You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police.
In this situation, the arrested person should always, always, always request an Additional Test. If you do, the law requires police to give you a phone to use. You can use the phone to call whoever you need to arrange for an additional test. Remember, time is of the essence with alcohol testing. Your test could defeat theirs, if done soon enough.
More resources and DWI Attorney help
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Stay safe out there.