YOUR DUI/DWI STOP: KNOW TO SAY NO

You are stopped by the police for a moving violation, e.g. speeding, or an equipment violation, e.g. tail light not working, or at a DUI/DWI checkpoint. The officer comes to your window and the investigation begins. The officer may just ask for your license and registration but he is looking at your eyes, he is trying to smell your breath for the odor of alcohol, he is looking at your dexterity or lack thereof in retrieving the requested documents. .

Now, having smelled alcohol, he will ask you a series of questions designed to elicit incriminating information. Specifically, he wants to know if you have been drinking and how much. Do you have to answer these questions? NO. Be polite; always maintain your composure because the officer will be frustrated that you are hindering his attempt to arrest you. Say as little as possible, depriving him of the accusation of slurred speech, but inform him that on advice of counsel you respectfully will not answer questions.

He will then ask you to step out of the car. He is looking for poor balance and lack of coordination when you open the door, rotate your body in your seat, place your feet on the ground and come to a standing position. Should you get out of the car? Yes. If you obstruct the investigation, the officer will have probable cause for an arrest based upon the obstruction and deprive your lawyer of bringing a motion to dismiss the case for lack of probable cause to arrest.

Once you are out of the car and standing, the officer will inform you that you will be asked to participate in Field Sobriety Tests (FSTs). When it seems an appropriate time, you should politely decline, again citing advice of counsel. I will go into the details of the individual FSTs in the next Blog, but just know that you are under no legal obligation to participate. FSTs are a battery of tests designed to show impairment. There are no standards or mechanisms for grading performance. It is a no win situation.

The ramification of the decision not to submit to the FSTs is twofold: most importantly, the officer will be deprived of additional facts illustrating impairment and it will be more difficult to justify the existence of probable cause to arrest. So far, he only has the driving, your appearance at the car window and your stepping out of the car. The other ramification relates to evidence at trial. The judge or jury will be informed of your refusal to perform the FSTs. (NCGS 20-139.1(f)) that can be explained by your lawyer later. Do not worry about it.