DWI / DUISurviving the DWI Car Stop

Before reading the following please remember that I am not your lawyer, I do not know the particulars of the carstop and only offer a layman’s opinion. If you wish to call the office for a free consultation I would be more comfortable in rendering an opinion. That being said there are some do’s and dont’s you may wish to follow when stopped by the police.

Never admit to consuming alcohol even earlier in the day. You are not required to speak with the police or to answer their questions outside of your ID, insurance, registration, etc.

Do not participate in any Field Sobriety Tests (FSTs) such as the One Leg Stand, the Finger to Nose, Walk and Turn, or the Horizontal Gaze Nystagmus Eye Test (HGN)

By participating you would simply be a witness against yourself. There is NO legal requirement to participate and most people are failed anyhow. The jury would then hear that you could not stand up on one leg (testalying) or failed miserably in the other FSTs.

If you are out in the early morning, particularly on the weekends, there is a good chance that you will be stopped (rightly or wrongly) for violating some vehicle and traffic law such as disobeying pavement markings or a similar minor traffic violation. Cops have absolutely no tolerance for any early morning “perceived” traffic violations since they want to stop you, look and speak with you, not so much for the violation they will testify that you committed, (reason for the car stop) but because they assume anyone out at 2 or 3 o”clock in the early morning has been drinking. Anyone who works nights and drives home early in the morning will verify this happens.

Your license, registration and insurance card should be readily assessable so they can be handed immediately to the police officer so as to avoid the cop observing fumbling or difficulty in locating these documents.

When asked where are you coming from never say a bar or a party as these preliminary statements can be used against you in any criminal charge. A candle light vigil or all night prayer meeting may be a better answer.

If asked to step out of the vehicle inquire if that is a demand or a request. If simply a request decline as you should not be participating in any test the officer is attempting to perform. If it is a demand, then step out trying not to lean on the car and still refuse to participate in any testing. Do not submit to the eye test (HGN) or the preliminary breath test conducted in the field as a positive alcohol reading is grounds for an arrest.

In NYS, if convicted of refusing to blow into the hand held alco-test device in the field, the charge (VTL 1194.1b), carries a two point penalty on your driving record. Since suspension happens at eleven (11) points it should not be a factor when you consider what evidence you may be giving up, a positive alcohol reading. This unit, powered by a fuel cell is notoriously unreliable. It does not differentuate between alcohols so if you were varnishing a table earlier or you used a breath spray it would generate a positive reading. It is so unreliable it can only be used in Court to contradict your testimony that you had no alcohol at the time of arrest.

If you are removed to the police station you will be asked to submit a breath sample into the Breathalyzer. This is where a refusal, if sustained at a future DMV Hearing, will generate a one year revocation. It’s easy for a NYC resident to say NO, but its tough in the burbs where there is little mass transportation. The problem is if you blow too high (depends on the County) there will be no offer to a reduced charge, say DWAI, a traffic infraction which is not criminal but a traffic violation.

Additionally, if you blow .18 or higher you will be charged with Aggravated DWI carrying higher fines and additional penalties.

If you are arrested, upon release immediately go to a hospital for a blood test to determine the amount of alcohol in your system. This reading can be used to contradict the “breath” reading that the DA may use to have you charged with DWI.

Obtain copies of that day’s newspaper’s weather reports to determine temperature and wind conditions. This information may be used to cast doubt on the cops testimony that he/she was able to smell a strong odor of alcohol emminating from your mouth while the report shows wind conditions at 2 am at 40 mph or similar.

Do not answer a long questionnaire regarding your medical condition, diet, activities in the last 24 hours and other information. Simple refuse to answer any questions other than pedigree information such as name, license, registration, ss#,and insurance info. Always be respectful and courteous to the officers and police personnel. Be careful not to be lulled into a false sense of security that the cops are your friend. They are not and anything you say can and will be used against you.

Be careful that the person coming to get you is sober as many times the cops breathalyze the arriving driver and arrest that person for DWI.

Further Reading

Surviving the DWI Car Stop
The DMV Refusal Hearing
Collateral Consequences of a Drunk Driving Conviction
Leandra’s Law – The Ignition Interlock Law for convictions of Driving While Intoxicated (DWI)
Frequently Asked Questions about DWI

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