News & Wins

I Just Got Pulled Over and I Have Been Drinking. What Should I Do?

Do you find yourself being investigated for DWI?

 

By Carl M. Ward

I am frequently asked what I would do if I had been drinking and was pulled over and found myself being investigated for DWI. First of all, that is extremely unlikely to happen. There are too many police officers in this State who would like to arrest my ass, perform a full body cavity search, throw me in a cage with Bubba, and leave the room. Fortunately, my wife of 35 years does not drink, so this has never been an issue. Good thing, given my chosen area of practice.

Anyway, my first bit of advice is don’t drink and drive. Cabs are cheap, and even a first offense DWI can end up costing you up to $10,000 or more in attorney fees, fines, court costs, SATOP fees, recoupment costs, law enforcement fund contributions, and auto insurance costs, not to mention the possibility of losing your job. One jurisdiction in this State has actually required that persons placed on probation for DWI put a “DRUNK DRIVER” bumper sticker on their vehicles. Try explaining that to your kids. In other words, tuck a $50.00 bill in that hidden place in your wallet and use it for a cab the next time you have to ask yourself if you should drive home.

Of course, if people followed my advice, I would be a used car salesman instead of a criminal defense lawyer. Interestingly, both occupations seem to command the same amount of trust by the general public, i.e., little or none. With that in mind, I have never fully understood why my clients all seem to love me. Go figure.

I have represented several thousand Missourian’s who have been charged with DWI over the past 25 years. Many of those folks were innocent. Many were not. Somehow, however, around 35,000 Missourians manage to get arrested for DWI every year. I have represented people from all walks of life… school teachers, doctors, nurses, lawyers, police officers, politicians, celebrities, judges, train engineers, pilots, dentists, brick layers, truck drivers, electricians, carpenters, salespeople, firemen, military personnel, prosecuting attorneys, and even priests, rabbi’s, and MADD mothers. Very few folks are what anyone would consider to be “criminals.” In other words, the people being arrested for DWI are our sons, daughters, mothers, fathers, sisters, brothers, aunts, uncles, nieces, nephews, friends and neighbors.

Most citizens arrested for DWI are not repeat offenders. Very few are involved in accidents. Instead, they are folks that just didn’t know how much was too much. Maybe if the State of Missouri actually educated people to be able to answer that question, the number of Missourian’s arrested would fall substantially. Missouri’s Driver’s License Guide needs a drinking chart in the back and driver’s need to be able to be able to recite how many drinks they can consume based on their body weight over a given period of time without going over the legal limit. Other states test on this subject. Why not Missouri?

Anyway, everyone should know their rights if they find themselves being investigated for DWI. Here is what I would do in Missouri:

1. Don’t drink and drive.

2. When the emergency lights come on, pull over to the right as soon as you can. If there is a side street coming up, take it. Allow enough room for the officer to pull behind you. If there isn’t a side street, pull over onto the shoulder and pull off the roadway as far as possible. Slow your speed right away so the officer knows you are looking for a place to pull over.

3. Don’t drink and drive.

4. Always use your turn signal before pulling over.

5. Don’t drink and drive.

6. Place your vehicle in park. Leave you vehicle running until told to turn it off.

7. Don’t drink and drive.

8. Have your driver’s license, proof of registration, and proof of insurance ready when the officer approaches your vehicle and have your window already rolled down. Not being able to produce those items upon demand is often used as evidence of your intoxication.

9. Don’t drink and drive.

10. If you have a tape recording APP on your cell phone, turn it on and put it in your pocket before the officer gets to your window. It is not illegal to tape record a police officer in Missouri. If you don’t have one, download one. Most police vehicles are not equipped with recording devices, and body cameras are not yet in wide use. Even if your encounter is recorded, too often, there are video and audio tape “malfunctions” with police equipment.

11. Don’t drink and drive.

12. Always be sure to keep you hands where the officer can see them. Don’t make any sudden movements or they could be your last.

13. Don’t drink and drive.

14. Be polite. Being argumentative or belligerent is a sure ticket to jail. Neither judges nor juries are sympathetic to people who are assholes.

15. Don’t drink and drive.

16. If you have had a couple of drinks, admit it. If you have had too much, and you know it, politely respond that you would prefer not to answer any questions without your attorney being present.

17. Don’t drink and drive.

18. Say as little as possible. The more you open you mouth, the more likely you will say something that will hurt your case. This is not the time to be “chatty,” make jokes, or ask questions. Do not try to make friends. The officer doesn’t care that you like the same NASCAR driver. As Chris Rock said in his video, “How Not to Get Your Ass Kicked by the Police, “shut the F_CK up!” In my experience, there is absolutely nothing you can say that will change the mind of an officer who has decided you are under the influence of alcohol.

19. Don’t drink and drive.

20. If the officer asks you to step out of your vehicle and walk to the patrol car, you must do so. Do not use your vehicle or the patrol car for balance. Hands off.

21. Don’t drink and drive.

22. Once inside the patrol car, do not try to mask your breath with your hand, roll down the window, or purposefully look away from the officer. If you have gum in your mouth when you are pulled over, the officer will try to claim that you were chewing gum to mask the odor. Get rid of it. It doesn’t work anyway. The officer has already smelled the odor of intoxicants coming from your breath. It is not illegal to drive with the smell of alcoholic beverages on your breath.

23. Don’t drink and drive.

24. If asked to take a portable breath test (“PBT”), ask the officer to confirm that the test is voluntary. It is, by the way. Politely tell the officer that you have heard that PBTs are unreliable and politely refuse. The case law in Missouri clearly establishes their unreliability.

25. Don’t drink and drive.

26. If asked to perform any other field sobriety tests, such as the eye test, walk and turn, one leg stand, counting, alphabet, or finger count tests, I would once again ask the officer to acknowledge that these tests are voluntary, and I would politely refuse to take any tests without the advice of counsel.

27. Don’t drink and drive.

28. If you have had injuries or diseases that would prevent you from walking a straight line or standing on one leg, make those conditions known to the officer at that time you refuse the walk and turn and one leg stand tests. Answer no other questions about your injuries or anything else. Yes, you will probably be arrested, but the chances are, you were going to jail anyway as soon as the officer smelled the odor of intoxicants on your breath.

29. Don’t drink and drive.

30. After you are arrested, do not plead for mercy or ask the officer to “cut you a break.” Do not ask the officer let you call your mama or another drunk friend to come pick you up. Dropping the names of fellow troopers, deputies or municipal police officers won’t work, either. Nor does telling the officer you are going to lose your CDL or job. Remember, shut the **** up!

31. If the police want to ask you any questions, they are required to read your Miranda Rights. You have the right to remain silent. Use it. Politely tell the officer you will not answer any questions without a lawyer present.

32. Don’t drink and drive.

33. The officer is required to read you the Implied Consent Warnings. These warnings are to inform you that if you refuse to submit to a test of your breath or blood for alcohol, your refusal to do so will be admissible as evidence in court and your license will be revoked for one year. Ask for 20 minutes to contact and speak with your attorney when that happens. That is a statutory right that the cops don’t have to tell you about. Always have the cell phone number and home number of an attorney who practices in this area of the law and who will answer the phone.

34. Don’t drink and drive.

35. If you have had very little or nothing to drink, take the breath test. Be sure to inform the officer if you happen to burp, belch or regurgitate during the 15 – 20 minutes immediately prior to the breath test. If you believe you have had too much to drink, you really need to talk to your lawyer because what happens next depends on the county you are in when you are arrested. Every county is different. In some place, if you refuse, even on a first offense, the cop will get a warrant for your blood and the Department of Revenue will try to both revoke you for refusing and when your blood test comes back over the legal limit, revoke you again for excessive BAC.

36. Don’t drink and drive.

37. The breath test operator is supposed to check your mouth or ask you if you have anything in your mouth 15 minutes before you blow into the breathalyzer at the station. The breath test operator should not leave you alone during that time and should be paying attention to make sure you don’t do anything to contaminate your breath test result.

38. Don’t drink and drive.

39. If your breath test result comes back over the legal limit, ask to be released right away so you can go to a hospital for an independent blood test. That is another statutory right the cops don’t have to tell you about. If you are told that you will be held for 12 to 24 hours, and will not be released, inform the officer that you believe they are interfering with your right to an independent test. Obviously, after that long, a blood test at the hospital would be useless, as all of the alcohol in your system would have been eliminated. Call your attorney from jail if this happens.

40. Don’t drink and drive.

41. Do not answer any of the interview questions, such as what time is it, what day is it, what city and county are you in, when did you last eat, have you been drinking, what were you drinking, how much, when did you start drinking, when did you stop drinking, are you under the influence of alcohol, are you taking any medications, or any other questions. Once you have informed the officer that you will not answer questions without a lawyer present, all questions should cease, and you have no obligation to answer them except to give your pedigree information. Don’t let the officer pressure into answering any questions.

42. Don’t drink and drive.

43. Know how much you can drink without exceeding the legal limit. Stick to measured drinks. Count your drinks. Know what’s in your drink. When in doubt, call a cab.

44. Remember. The best defense is a strong offense. Don’t drink and drive!

Copyright 2016

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