There is nothing scarier than seeing red and blue lights in your rearview mirror. Even our experienced DWI attorneys can tell you that, when they get pulled over (as everybody does from time-to-time), they get a little bit nervous. The fear is even greater if you’ve had a glass of wine or two with dinner. Your mind is racing. What do I do? What should I say? Am I over the “legal limit”? Will I get arrested? If I do, what will happen to me?
Without a doubt, the most common question people ask our DWI attorneys (including our attorneys’ family, friends, and random people they meet) is “What do I do if I get pulled over, and I have been drinking?” Adding to the confusion of DWI law, if you ask 100 attorneys this question, you will seemingly get 100 different answers. Having collectively worked on thousands of DWI cases over the years, our attorneys have done their best to come up with the best overall advice to answer this common question.
As soon as you see the red and blue lights in your rearview mirror, find a safe place to pull over, put on your blinker, and pull as far off the roadway as possible (being careful not to drive into the grass). Put your car in park. Nearly all of us have recording capability on our cell phones. If you don’t, there are free apps available. Download one now! Set your cell phone to record, and place your cell phone in your pocket. If you leave your phone in the car, you may miss the most important conversations with the police officer that frequently occur outside of your vehicle. Make sure your cell phone is locked and ensure when selecting an app that the phone will record, even when locked. It is important that you lock your phone (and have a passcode) because the U.S. Supreme Court has previously ruled that a police officer is permitted to search unlocked cell phones. While we hate to think about it, many police officers would have no problem turning off your recording device and deleting the recording.
After your phone is set to record, immediately locate your license and insurance card. It is best to keep a copy of your insurance card in an easy to find location such as your center console. We have seen many police officers testify that a particular driver “had difficulty locating his [or her] license or insurance.” The officer will incorrectly testify that this failure is evidence of intoxication. To avoid that risk, make sure you can easily find your license and insurance card. Ideally, by the time the officer comes to your window, you will have your documents ready to go. Do not underestimate the power of adrenaline. No matter how calm you think you might be, even attorneys will often say that they have never been more nervous when pulled over after drinking. For safety, the officer will frequently approach your vehicle from the passenger side. Have your window down by the time the officer approaches.
The officer’s first question may very well be the classic, “Have you been drinking tonight?” No matter how smooth of a talker you may be, make no mistake about it, you can rarely (i.e. almost never) talk your way out of a DWI. After midnight, most police officers have only one thing on their minds, DWI arrests. By the time the officer has stopped you and smells alcohol on your breath, you are almost certainly going to jail. Thus, your primary objective has to be assisting your attorney in building your defense at a time when your attorney is not sitting right there with you to protect you. Your response should be, “I’m not answering any questions until I speak with an attorney.”
You need to understand something. Most police officers are highly trained in various interrogation tactics, especially when dealing with a potentially drunk driver. The officer will almost certainly berate or belittle your refusal to answer questions. The reason? Because police officers know that, in many cases, their best evidence is the statements made by the driver. Maintain your composure. Do not argue with the officer. Do not get baited into declaring your innocence. There is a time and a place for that, and it is not now. The officer will ask you for your license and insurance. Because you already have it ready, you can easily hand it to the officer.
The officer will likely run your license through the system before coming back and asking you to step out of the car. The officer does this for two reasons. One is officer safety. The reality is that, unlike you, there are many dangerous people in this world, some of whom would like nothing more than to hurt a police officer. Police officers are trained to be on high alert during traffic stops, as they are trained that traffic stops are among the most dangerous encounters a police officer can have with people. Second, the officer (unfairly) wants to know if you have any prior history of DWIs, driving while suspended convictions, etc. If you have a prior DWI on your record, even more so than other drivers, you can rest assured that you are going to jail.
When the officer asks you to step out of your car, do so without delay. Be careful to make sure you step onto firm footing and maintain your balance, as the officer is watching your every move. Shut the car door behind you. Follow the police officer’s directions to whatever location he directs you to. The officer is going to attempt to administer what are known as field sobriety tests to you. Without going into grand detail (because if you follow this advice, it won’t matter), the officer intends to administer a series of divided attention tests which are designed to distract you into making mistakes in your memory and balance. Tricky police officers won’t even ask. They will just begin checking your eyes with a test known as the horizontal gaze nystagmus test (it basically just checks for involuntary jerking in your eyes that can be caused by alcohol, as well as over a hundred other things).
Whether the officer asks if you will perform the tests or simply attempts to begin the testing process, simply state (politely), “I want to speak to an attorney before taking any tests.” Again, the officer will berate or belittle you for refusing to take the tests. The officer will tell you things like, “if you pass, I will let you go home” or “if you aren’t guilty, you won’t have any problem taking these tests.” Again, you are not going home; you are going to jail.
Even if you are innocent, these tests are designed to make you fail. Even under the best of circumstances and based on the government’s (yes the same government that is investigating you for DWI) own research, the most reliable of these tests is only 77% accurate. Our firm has seen professional athletes “fail” these tests, even though the video shows the client performing the tests to perfection (note: you cannot guarantee that the officer will have a camera or audio recording device. Most police departments claim lack of funding in their refusal to install such devices). Thus, even if you are a world class athlete, maintain your composure and refuse all tests.
The officer may present you with a breath testing device known as a portable breath tester (“PBT”). The officer may even lead you to believe that, if you refuse to blow in the PBT, you will lose you license. This is not true. Under Missouri law, the PBT may only be used to determine if alcohol is present in your system. Because they are so unreliable, they are not admissible in court for the number that shows up on the device. You will know when you are being asked to take a breath test that could affect your license because Missouri law requires the officer to read you a statement known as “implied consent.”
The implied consent statement will inform you that you are being asked to take a breath test and, failure to do so, will result in a one year revocation of your license (although that is not necessarily true, as your attorney can challenge the breath test in court). With regard to the PBT, again state, “I want to speak with an attorney before taking any tests.” The officer will place you under arrest. Even if the police officer is not in the police car, DO NOT make any statements while seated in the back of the car. Some police cars (even if they don’t have video cameras) have recording devices hoping that you will make the mistake of speaking. Our firm has represented clients with very defendable DWI cases, except that the clients made terrible admissions in the back of the police car such as, “I shouldn’t have drank so much” or “I should have called a cab.”
When the officer takes you to the station, he will attempt to ask you a series of questions such as “Are you under the influence of alcohol or drugs?” “How much have you had to drink tonight?” and “What medications have you taken?” Again, politely state, “I’m not answering any questions before I speak with an attorney.” Shortly thereafter, the officer will read you implied consent and ask you to take a breath, urine, and/or blood test. You may again (but are not required to because you already did) inform the officer, “I want to speak to an attorney before taking any tests.” If you don’t ask the question here, you better hope that your recording device recorded the conversations because the officer is likely to deny that you previously asked to speak to an attorney! If you want to be 100% safe in ensuring that you have a right to speak to an attorney, you should ask it again.
At this point in time, assuming the officer follows the law and lets you call an attorney, ask to have your cell phone (which the officer must provide to you), and call our office immediately. At this time, you should put our DWI number in your phone under “DWI attorney” or “Hollingshead & Dudley Law.” That number is (314) 888-9247. While there is not a 100% guarantee that an attorney will be available, we do our best to answer calls, regardless of the time of night. It is important that you continue to maintain your silence to the police officer. If you have cell mates, do not speak to them. We’ve all heard it, but it is true that anything you say CAN and WILL be used against you in court. The cells also frequently record all conversations.
Please note that your conversation with an attorney is 100% confidential under Missouri law. The officer may not use any portions of your conversation, even if overheard by the officer, against you in court. Thus, you need to be honest with the attorney. An attorney’s advice is only as good as your honesty. Keep in mind, the attorney will be basing his advice upon such factors as 1) your prior offenses, and 2) how much you ACTUALLY had to drink. It is not our job to judge you. Candidly, members of our firm have received DWIs in the past, and we understand that sometimes these things happen. Rest assured that, just because you admit to being intoxicated, we will represent you just as vigorously in court as if you claimed to be innocent.
Once you (or a friend/loved one) have paid your bond, go home with all of the paperwork the officer provided to you. On the next business day, contact our office for a free consultation with one of our DWI attorneys. At your appointment, bring all of the paperwork the officer provided you to the appointment, so you can give it to the attorney. If you were able to speak with one of our DWI attorneys from jail, we will ensure that you have a consultation with the same attorney, as the attorney will already be “up to speed” on your situation.
IMPORTANT REMINDER: Our attorneys have represented other attorneys and even judges on DWI charges. Even these legal professionals will sometimes throw everything they know and advice they have given their own clients out the window when they get pulled over after drinking. Don’t make the same mistake. During the DWI investigation, you and you alone, control your ability to help your case. The things you say and do will have a tremendous impact on your attorney’s ability to defend you in court and in front of the DOR. If you deviate from these instructions at all, you may jeopardize your attorney’s ability to obtain a successful outcome on your case. Thus, commit these instructions to memory. When you are pulled over, the more you have thought through what to do, the better the chance you will actually do it!
