One of the most common comments during an initial DWI defense interview with a new client is that the client didn’t know what to do or not to do when interacting with the police. Clients are often terrified and overwhelmed with circumstance of being pulled over by a police officer. This is especially true when the client has recently consumed alcohol before driving, and get pulled over for drinking and driving. Over the next few weeks through a short series of posts, I will attempt to impart a little friendly advice from the vantage point of both a former police officer specializing in DWI and a criminal defense attorney with a primary focus on DWI defense. Obviously, the best way to beat a DWI is to never get behind a wheel if you’ve had ANY alcohol. This advice and information is not meant to give anyone the necessary skills to “get away” with drunk driving or encourage / enable the violation of law.
THE INITIAL POLICE CONTACT
The 4th Amendment protects “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon Probable Cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” A police officer has the right to briefly detain and subsequently arrest an individual only upon being able to successfully articulate facts and circumstances that rise to the level of reasonable suspicion and probable case. “Reasonable Suspicion” is most easily defined as the belief of a reasonable person that criminal activity is afoot. This belief must be based upon real facts and circumstances and not merely a hunch or theoretical suspicion. Once reasonable suspicion exists, the officer has the right to briefly detain and investigate the suspicion, which includes a “Terry Search” or pat down for weapons. Only upon the existence of probable cause can the officer convert the stop to an interrogation and / or arrest. “Probable Cause” can be defined as facts and circumstances that would lead a reasonable person to believe the person has committed a crime. While these definitions and legal principles are not particularly great reading, they are important to the DWI Stop discussion for one principal reason: At the time the police officer first comes into contact with a driver during a DWI traffic stop, the officer has already come to the conclusion that the driver has violated the law or is currently violating the law. His subsequent contact with the driver is merely to gather more evidence or proof of the violation of the law he already suspects and to potentially discover more violations of the law.
The key to successfully navigating a police stop is to remember to “shut your mouth”. The requirement of the police advising a detained person of the Miranda Warning (“You have the right to remain silent …”) does not apply to traffic related investigations, including DWI. The investigating officer is going to be observing your appearance, your speech, your motor skills, your ability to follow simple directions, and your immediate surroundings (the inside of your vehicle).
During a traffic stop the officer is going to ask you questions, but he is not going to ever tell you that you don’t have to answer any of his questions. Some of the most common questions asked are “do you know why I stopped you” and “have you had anything to drink”. If the officer believes you’ve been drinking as the result of your driving, the officer is seeking to engage you in a conversation to confirm or reject the opinion he has already formed. He is going to evaluate your speech patterns, your ability to put together sensical on point answers, and your ability to comprehend simple directions. Don’t give him anything to work with–NEVER answer these questions with any answer other than “No”.
You must identify yourself if asked, but the easiest way to accomplish this requirement is to simply hand the officer your driver’s license or state issued ID and insurance verification. This is the limit of the “must answer” questions. If asked to confirm your address or DOB, simply point to it on on the DL/ID. If you feel you have to speak, limit your speech to very short sentences and phrases using very simple language.
Common sense tells you if you flatly refuse to communicate with the officer beyond identifying yourself you will significantly raise his suspicions and intensify the investigation. The easiest way to handle this situation is answer only those questions necessary to avoid further suspicion, but to do so in very short, simple answers. In my opinion based upon my experience as a police officer, it is very unlikely that an intoxicated person is going to slur “Yes” or “No”. The key is keep it simple and admit nothing.