What To Do When You Are Arrested for Drunk Driving

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Getting arrested for drunk driving may just be one of the worst ways to end your night. Here is advice on what to do from experienced DWI criminal defense attorneys to minimize or eliminate your criminal exposure:

1. Remain Calm and Polite

When you see the police lights flashing behind you, slowly pull over to the side of the road while using your turn signal. Turn on the interior lights of your car and place both of your hands on the steering wheel. If it’s dark, or you have tinted windows, consider rolling down all of the windows in your car. Now, you may be thinking, this is all outright silly, but I promise you it’s not.

Think of your DWI case through eyes of the jury

In the event the car stop becomes an arrest, which in turn becomes a criminal case and then a trial. Ask yourself, “what will the officer testify to?” and “what will the jury think of my conduct?” Now, let’s say the jury hears the officer describe your conduct similarly to what we are suggesting. The jury will be sitting there thinking, “No way is this guy intoxicated. He’s being reasonable and respectful of the police officer.”

Prepare to Provide Your License and Registration

99% of the time the first thing the officer will ask for is your license and registration. (Other 1% being – “do you know why I stopped you?”). As soon as realize that you are getting pulled over, mentally prepare yourself for providing that license and registration. Think about where these items are. Your glove box? Your wallet? There’s nothing worse than the officer testifying that the client provided his credit card instead of a drivers license.

2. Do Not Engage in Conversation and Request an Attorney

Under New York Vehicle and Traffic Law, there is no specific physical or chemical test that the police have to do to prove that someone is driving under the influence (DUI) or driving while intoxicated (DWI). For example, see jury instructions for Vehicle and Traffic Law Section 1192.3 – Driving While Intoxicated. Specifically, the judge goes over how there is no test requirement under New York Law.

Limit the Officer’s Observations of Your Physical Appearance

Although there is no specific test for DWI that is required, an officer is able to testify about his opinion of your intoxication. Specifically, a police officer is able to his observations of you that support his opinion of your level of intoxication. Therefore, it is in your best interest to limit the time that the officer spends with you.

Examples of DWI Observations:

  • Disheveled clothing;
  • Slurred speech;
  • Unsteady walking;
  • Smell of alcohol on breath;
  • Vomit on Clothing
  • Flushed face;
  • Glassy or watery eyes.

Limit Your Conversation with the Officer

Usually, when police officers suspect someone of a DWI, they ask a series of questions. These questions are:

  • Where you are coming from?
  • Where are you going?
  • How many drinks have you had?
  • What kind of alcoholic beverages were you consuming?

Exercise Your Constitutional Rights to Remain Silent

You do not have an obligation to answer the officer’s questions. Rather, you have a constitutional right to remain silent. What I tell all of our clients, is when they’re approached by law enforcement they need to blame their attorney (me!) for refusing to answer questions. Something along the lines of “I have the most protective and unreasonable attorney that does not allow them to speak to law enforcement without being present. I am sorry. Please call my lawyer.”

Have Attorney Name or Contact Information Ready

Importantly, when you ask the police officer to call your attorney you need to have the attorney’s name ready. Your officer does not have an obligation to search for a 5 star Google rated criminal defense attorney on your behalf.

Rather, under New York case law, the police have an obligation to look up the attorney’s phone number if you have the attorney’s name. The case law is so old, that it actually uses the standard of whether the attorney can be located in the yellow pages.

Similarly, you are able to give the officer the attorney’s name as well as a phone number. This is why it’s important to carry a criminal defense attorney’s business cards with you. Contact us, we’ll mail you a few just in case if you’d like.

3. When Suspected of Drunk Driving, Do Not Take the Portable Breath Test

Some New York City Officers carry a portable Breathalyzer, commonly called a Portable Breath Test or PBT. Under no circumstances should you agree to take the portable breath test. Below are the reasons why:

Officers rarely do the 20 minute observation person

Much like the breath tests at the precincts, portable breath tests also have an observation period. An officer is supposed to observe the motorist for 20 minutes prior to administrating the test to ensure that the motorist does not burp or throw up prior to taking the breath test. As that is likely going to cause the BAC test result to be higher than what is actually in the motorist’s  body.

As the portable breath tests are conducted on the side of the road, police officers oftentimes forgo the 20 minute observation. When this is done the results of the test may be inaccurate. As the officers oftentimes don’t follow the required observation period it is best to refuse to take the test. You have an absolute right to refuse to take the test. 

PBTs are frequently not properly calibrated or maintained

Portable breath tests must be regularly examined and calibrated to make sure that the instrument works properly. In the real world, this is rarely done. Therefore, the PBT test that you are taking may not be in proper order. While improper calibration may be a reason that the results of the PBT can’t be used at trial, that will still require a judge to grant a suppression motion. Avoid making the Government’s case stronger and refuse to take the PBT.

PBTs can confirm the Officer’s opinion regarding your level of intoxication, resulting in your arrest

As explained above PBT’s are not always admissible at trial. Even if the results of the PBT will not be admissible at trial, the results of the test can still corroborate the officer’s opinion of your intoxication. Let’s say the officer can’t make up his mind about whether you’re intoxicated based on looking at you and speaking with you. However if you submit to a PBT and the PBT result is above .08, the officer’s observations regarding your demeanor and physical appearance will be corroborated by a scientific test.

Although these tests are frequently inaccurate the officer is able to use the results of the test as probable cause to arrest you. This is why you should not be taking the PBT test. It is another piece of evidence that the government is able to use at trial against you.  

4. When Arrested for Drunk Driving, Don’t Consent to the Search of Your Vehicle

An officer may ask you to consent to the search of your vehicle after pulling you over for a suspected DWI. You have an absolute right to refuse the search of your vehicle. Even if the officer tells you he is able to get a search warrant. You should not be making the police officer’s job easier for him. If the officer believes he has probable cause to search your car, he should be applying for a search warrant.

We have represented and number of individuals on DWI cases where during the search of the vehicle the police have uncovered narcotics drug paraphernalia or even Guns and other weapons. Even if you believe you have nothing illegal in your car you have a right to refuse the search of your vehicle. 

5. Do Not Take the Coordination Tests When Arrested for Drunk Driving

You’ve probably seen enough movies to know that the police officers require motorists suspected of DWI to take coordination tests. These tests add to the officer’s opinion about the motorist’s intoxication status.

In New York, NYPD conducts these tests along with a breathalyzer at the Intoxicated Driver Testing Unit (“IDTU”). There are one or two IDTUs in each borough and they are oftentimes located within a precinct. The officer who will be conducting the coordination tests is a member of the Highway Unit and has specialized training on identifying signs of DWIs.

The officer has a checklist of all the tests as well as score card of your performance. Common DWI Coordination tests are:

  • Finger to Nose Test
  • 30 second One Leg Stand Test
  • Heel to Toe Walk and Turn Test

For each test, the officer will indicate whether you passed or failed the test. If you fail, the officer will write the reasons for his opinion. Importantly, from the time that you are brought into the IDTU testing room, everything is video recorded. Therefore, it is important to remain calm and polite at all times. However, you should consider refusing doing the coordination tests. Not only will the jury hear from a Highway Officer regarding the tests, but they will also be able to see your performance for themselves.

6. When Arrested for Drunk Driving, Do Not Take the Breathalyzer and Request an Attorney

After the coordination tests, you will be asked to take a breathalyzer test. The most common machine for these tests is Intoxylizer 5000 or 5500. Unlike the PBT, these machines are regularly calibrated and maintained. Therefore, it is generally very difficult to convince the jury that the BAC breath test results are inaccurate based on a testing machine’s malfunction.

How the Breathalyzer Test Works

Before taking the breathalyzer test, the officer has to observe you for at least 20 minutes to make sure you do not throw up or burp. That may provide an inaccurate test result.

The Officer will explain to you how to property provide a breath sample. You will be provided with a brand new mouthpiece that the officer will put on the machine. Then, the officer will instruct you to blow continuously into the tube. The intoxilyzer machine will make a noise as the air is going into it. You are required to blow continuously for about 10 seconds for the machine to measure the alcohol content in your breath.

DWI Refusal Warnings

The officer will also go over the DWI refusal warnings with you. Specifically, if you refuse to provide a breath sample or if you intentionally try to trick the machine by fake blowing or sucking the air in, your license will be automatically suspended. Although being without a license is an inconvenience, facing a criminal DWI conviction and having to go to alcohol counseling is a bigger one.

Generally, you should refuse to take the breathalyzer test. There are ways to get you what’s called a conditional license from the DMV later, which will allow you to drive to and from work.

Breathalyzer result is damning evidence

The BAC reading is the single worst piece of evidence for a jury to see on a DWI case. Although the jurors may not believe the police officer’s observations, it is a lot harder to argue that the test is inaccurate after the Government presents multiple witnesses that talk about the reliability of the machine.

What you should do instead, is request an attorney to consult you on whether you should take the breathalyzer test.

Once again, it is important to have at least the attorney’s name and preferably their contact information. As you probably know, the BAC goes down with time. So requesting an attorney to the precinct, will definitely delay the timing of the test. When you speak to your attorney, you will be able to figure out how to best proceed with the breathalyzer test.

7. When Arrested for Drunk Driving, Have an Attorney in Mind

Think of criminal defense attorneys as an insurance policy. It’s always good to have, but you don’t necessarily know when you’ll need it or use it. You should have an attorney in mind, or maybe even an attorney on retainer in the event you are contacted by the police or law enforcement. Contact us today to discuss your DWI case or a general availability retainer for any potential contact with law enforcement.