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Countermeasures at a DWI Stop: the Party Question

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

The new Prohibition? Tips for a DWI stop
The new Prohibition? Tips for a DWI stop

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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You may also like our articles:

The midnight DWI jail call to a Minnesota lawyer

Know Your Rights: Protect Yourself from the Police

Avoiding Traffic Stops

Stay safe out there.

By: Thomas C Gallagher, Minneapolis DWI Defense Lawyer.

13 thoughts on “Countermeasures at a DWI Stop: the Party Question”

  1. Thank you so much for giving us this information. I don’t drink at all nor do I do any drugs so I am not worried about being arrested for DWI. Even so, I always appreciate knowing what my legal rights are in every condition as I know that a person can be arrested when they haven’t committed a crime and if they say the wrong things they can be convicted even thought they are innocent. I am so grateful for everything you defense attorneys do. I am 67 y/o and disabled with a bad back so I am not going to go to law school but if I was young and healthy that is what I would do. Abuses of the Constitution and passage of unconstitutional laws has increased tremendously during my lifetime. Since Obama has become the President, unconstitutional laws and abuses of power have reached epidemic proportions! Again, thank you so much.

  2. If I thought I were over the legal limit, and the officer asked whether I had been drinking, I would say, “I want to speak with a lawyer. He would say., “We are not yet at that point yet”. I would say, “I am”. He would say, “Get out of the car”, and I would. He would say, ‘Are you refusing to do tests?” I would say, “I want to talk to a lawyer.” I would not say : “No, I want to talk to a lawyer”, just. “I want to talk to a lawyer”. He would then ask, “Are you refusing a PBT?” I would say, “I want to talk to a lawyer”, He would arrest me, and then at the station I would call a lawyer. He would arrest me anyway.
    They cannot use your request for a lawyer against you in a jury trial, and you have nothing to gain by doing tests he will surely say you failed, and which you probably will fail. Try to retrieve your license before he gets there, and do not look at him directly or speak a lot, as it is likely on tape. Your mantra is, “I want to talk to a lawyer”.

    1. I suspect that an attorney cannot tell a client to cooperate with the officer and do the roadside tests (while still not saying anything) because the attorney could get sued by his client for giving bad legal advice.

      That’s why I see here, and everywhere else, the advice that the driver should refuse to do the roadside tests. Yes, that is the best legal advice, but let me remind everyone of this real life bit of advice: “Yes she was legally right, dead right.”

      After discussing this subject for several months with my brother, who has had extensive contact with many police officers (in a workplace setting), I have decided to follow my brother’s advice and forgo the expert legal advice given here.

      My brother’s advice: “Don’t get’m ticked off.”

      Because, well, you know why.

      1. I have seen police officers in a courtroom fail their own demonstration of what they call “field sobriety tests,” despite not consuming an alcoholic beverage before. Regardless of how well a driver does at these field exercises, which are difficult for sober people, if the police officer smells the odor of alcohol on the driver, that police officer is almost certainly going to request a “Preliminary Breath Test” (PBT) at the roadside. In Minnesota, if the driver refuses the PBT, that alone is probable cause for arrest. If the PBT shows a 0.08 or higher reading, the driver will be arrested. So, it really comes down to the PBT almost every time. Why waste time and hurt yourself by providing unscientific “evidence” by doing requested field exercises by the side of the road? Instead, the driver can politely decline, and perhaps volunteer for the PBT. Traffic stops are generally video-recorded now. Police officers today are generally better trained and are not going to get upset because a driver declines to consent to performing roadside field exercises. I’ve discussed this many times with police-officer friends. They understand that no one has to consent to field exercises after a DWI stop, but enjoy the fact that most people don’t know enough to decline.

  3. Tom – Thanks for publishing the most comprehensive post I’ve seen on this topic.

    It seems that despite the DOT’s National Highway Traffic Safety Administration’s recommendation not to rely on “bloodshot, watery eyes” as an indicator of impairment, cops continue to use it as a basis for arrest.

  4. I found Albert’s comment to be very interesting. He assumes that if he is not impaired, he will not be arrested, and this is just not the case. If you are driving a car late at night, and someone is in the car with you who has been drinking, then when you roll the window down all the way, the “odor of an intoxicating beverage” will be detected by the officer (from the passenger). If you are tired and your eyes are red, you will be out of the car and requested to do tests. Albert is disabled with a bad back, so he will probably not pass the field sobriety tests, and will be arrested for driving under the influence of alcohol.

    Impaired driving is a serious problem, but so is arresting and convicting people who are not impaired. Those who are factually innocent need to understand how they can avoid getting swept up in the ever wider net that is being cast to “catch” offenders.

    Innocent people are arrested all the time. For impaired driving charges, the consequences begin to be assessed before a trial. In many states, you lose your license, and for many that prevents the accused from earning a living.

    Lets get the drunk drivers off the road, but spare the citizen who is not impaired from the crucible of punishment, which is not deserved. This is what attorneys like the author are trying to avoid. Thanks for the well expressed article.

    1. Dear Tom, I realize more now the wisdom of your words. About 1 year ago I was stopped for making a “wide turn” onto the street that I live on which had no traffic on at all. The police had me do a sobriety test which I was unable to finish because of physical disabilities. The officer said, Are you refusing to continue? and I replied no I am not refusing but I am physically unable to continue as the pain it causes me is excruciating. With that 3 officers grabbed me and forced a breathalyzer mask on my face and I as told to breathe. Of course I had to breathe but had not touched a drop of alcohol and so passed the breathalyzer. After that for about 1 month I was stopped near my house by police that said I had broken a traffic law which I had not broken so that they could look in my car. This was obvious because even though they said I had went through a red light or made an illegal turn they never gave me a ticket which they would have done if I had actually broken a traffic law.

    1. Albert Nygren

      Tom Workman, Thank you for commenting on my comment. I do not assume that if I am not impaired that I won’t be arrested. In my comment, I said that I know that innocent people can be arrested and convicted because of a number of things. That being said, I appreciate your comment. I will in the future act in accordance with the principles in this article because you are absolutely correct. Because of my bad back, I would fail a field sobriety test and could be arrested because of that and possibly convicted.

      I have a niece who is an assistant prosecuting county attorney and so is her husband. She does not deal with criminal cases at the present time but her husband does. I asked him awhile back if his decision to prosecute someone depended solely on whether he could make a case or not, or did his belief in the innocence or guilt of the person enter into his decision.

      He said that his belief in the innocence or guilt of the person rarely was a factor in his decision whether to indict the person or not! I can understand on a logical basis why he made his decisions that way but for the sake of peace in the family, I didn’t tell him how terrible I thought that was, that even if he thought the person was innocent, if he could make a case against the person, he would indict him/her and bring the case to trial.

      I suspect that his attitude is common among County Attorneys and District Attorneys. This is just one of the reasons that I appreciate this blog and comments from people like you, Tom, so much. Thanks again.

  5. George E. Bourguignon, Jr.

    Yes, this subject matter is the topic of party conversation. Very good post for ensuring the rights of the driver late at night. What do you think the cops reaction will be be a refusalt to answer the question of whether someone has been drinking? Would it be advisable to ask what serves as the basis for the question?

  6. Do you advice ( as a attorney) bartenders and bar owners to server alcohol knowingly to people with alcohol restrictions and with a known history of alcohol abuse. .Does the bartender’s knowledge of the customers drinking history change the responsibility of alcohol service? Does this history of abuse change the civil accountable of the alcohol service given?. Would you as a lawyer give advice to bar owners to knowingly server alcohol to customer with b-card alcohol restriction? Would a person with b-card be considered a person of questionable charter in court if drinking alcohol and driving? If you were suing a bar what would you say in court about the bar’s practice of knownly serving people alcohol with alcohol restrictions and could that possibly become a legal issue of possible risk?.

    Thank you Bob

    1. My practice is limited to criminal defense, and a few closely related quasi-criminal civil areas like asset forfeiture, and matters related criminal clients cases. I don’t do civil litigation involving dram shop suits or personal injury suits where the plaintiff is suing a third party, such as a bar. My many clients over the years have, however, informed me that they are generally denied service of alcoholic beverages at bars and restaurants if the server becomes aware of their alcohol-restricted B-card drivers license. This can cause them embarrassment. For the server to protect themselves from potential civil liability by denying alcohol service to a person known to have an alcohol-restricted B-card drivers license is understandable.

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