Don’t volunteer information that can be used against you
As an attorney who’s handled hundreds of DUI cases, my counsel to clients is their defense begins with the traffic stop. Limiting the evidence the prosecution can bring is the first step in any defense. And while a traffic stop is an opportunity for the prosecution to collect evidence, if a driver is prepared, a traffic stop can be just that: a stop.
Always ask why you have been stopped
For a traffic stop to be lawful, the police officer must have a reasonable suspicion that the driver has committed an infraction. The officer should disclose the infraction immediately upon communication with the driver. If not, the driver should immediately ask the reason for the stop.
Avoid voluntary questions
If the driver is accused of a traffic violation that inherently does not have a component of impairment including speeding or rolling a stop sign, the driver can decrease the likelihood of a DUI investigation by avoiding answering questions unrelated to the violation. Examples of such questions, which are designed to elicit voluntary information, include: where you are going, where are you coming from, why were you speeding, have you been drinking, and how much have you had to drink. The driver isn’t obligated to answer and might respond by saying the questions aren’t related to the observed traffic violation. Or, the driver may say, “I don’t feel comfortable answering those questions without an attorney present.” Finally, the best approach may be to decline answering at all. The driver can follow up by asking the officer, “Am I free to leave?”
Information collected with these voluntary questions can form part of the basis for a DUI investigation. An admission to consuming alcohol, even if the driver says, “I only had two beers,” when coupled with observations the officer has made about the driver — slurred speech, bloodshot glassy watery eyes, trouble locating documents, odor of alcohol and anything else visible that may indicate alcohol consumption — can and likely will lead to the officer asking the driver to exit the vehicle.
With no driver-volunteered information, the officer must rely solely on driving pattern and observations, which might decrease chances of a DUI investigation. Even so, driving pattern and observations could still be sufficient for the officer to request the driver step out of the vehicle. If the driver is asked to step out of the vehicle, he or she should be aware that the officer will make more observations about how the driver exits the vehicle, uses the car to balance, has an orbital away, or trouble walking to the officer at the rear of the vehicle.
Refuse field sobriety exercises
Once the driver exits the vehicle, the next question typically is whether he or she is willing to perform some exercises to assess ability to drive safely. The answer should always be no. Field sobriety exercises (FSE) are voluntary and the driver cannot be suspended or punished for refusing to perform them. The FSE’s are the most common tool to establish enough probable cause to arrest the driver for DUI. If the exercises are refused the officer will be left to base his or her decision to arrest on less reliable information such as the personal observations and the traffic infraction. I know of specific instance in which an acquaintance followed my advice and refused to perform FSE’s while sitting in the car. As a result, the officer decided that he didn’t have enough with the speeding infraction and observations to arrest for DUI.
Help me help you
While I stand by this counsel, it’s important to understand that it’s not a perfect roadmap to avoiding a DUI. Even a driver follows it perfectly, he or she could still be arrested and taken for the breathalyzer. However, I can state with a high degree of certainty that if a driver were arrested, but followed this advice, I would have a much better ability to defend the individual than otherwise. Remember, a traffic stop is just a stop, unless the driver volunteers information that could turn it into an arrest.
By Joseph Knape, Esq.