This is written for those who, on occasion, enjoy a beverage
away from home and must return there via a motor vehicle.
Getting stopped by the police can happen to anyone. A
cautionary tale comes to mind. I recall sitting by a window at
the Firehouse Café in Worcester years ago with two friends,
one a veteran state police trooper and the other a long-standing
member of the “drink-and-drive society” who had never been
stopped on suspicion of driving under the influence. As we
watched some near accidents during rush hour at Exchange
and Commercial streets (this was back when it was a four-way
intersection and the convention center was little more than
a dream), the trooper offered a warning: “Let’s say that after
you leave here today, you stopped at the stop sign completely,
looked both ways, and proceeded into the intersection, and you
were hit by another car that ignored completely the stop sign.
The focus of the police would be on you because of the smell
of alcohol.” What follows are 10 items of advice in case you are
unlucky.
- Know where your license and registration are kept.
Police are very watchful for their own safety, and whenever
they get a whiff of alcohol emanating from a motorist,
the investigation begins. In an OUI investigation, the first
moments of interaction may be crucial. The police receive
training in the form of a U.S. Department of Transportation
manual entitled DWI Detection and Standardized Field
Sobriety Testing. The manual instructs trainees about preexit interview techniques that “apply the concept of divided
attention” and include “asking for two things simultaneously”
such as the driver’s license and vehicle registration. The
situation becomes even more complicated for the driver if,
while he or she is looking for the requested documents, the
police officer engages in the second technique of “asking
interrupting or distracting questions” or the third technique
of “asking unusual questions.” If the driver knows where
the right documents are, smoothly finds them without
hesitation, and is able to hand them to the police officer, a
potential crisis may be averted. - Be polite and respectful to police and other first
responders.
They have a job to do and don’t need to listen to a lot of
nonsense. The more attitude you project, the greater the
likelihood you may not be going home anytime soon. - Say as little as possible while being polite and respectful.
The inquiry is entirely subjective and guided by the police
officer’s sense of fairness. Slurred speech, admissions
of drinking, or inconsistent responses are among the
indications police are watching for as well as nonresponses
to questions asked while a license and registration are
sought. The police may ask you to recite the alphabet from E
to R or count backwards from 65 to 47; one takes those tests
at their peril. - If you’re questioned while seated in the car or after
being asked to step from it, state that you would like a
lawyer present before answering any questions.
The police are not obligated to warn of Miranda rights until
you are in custody. Although you may be detained while the
investigation proceeds, the police are free to ask questions
that usually result in incriminating replies. By asking for a
lawyer and invoking your right to silence, you eliminate a
potentially powerful and harmful source of evidence. - If you’re asked to step from the motor vehicle, do so
carefully.
You must step from the motor vehicle and walk where
directed. If you have health issues making such an event
difficult for you and can state them succinctly, do so. The
police are now actively searching for evidence of OUI. This
is known in the manual as “the exit sequence,” as in, “How
the driver steps and walks from the vehicle and actions or
behavior during the exit sequence may provide important
evidence of impairment.” - Refuse politely to perform any field sobriety tests.
Field sobriety tests are the heart of any OUI prosecution.
Although the horizontal gaze nystagamus test is always
given, the result is inadmissible without expert testimony.
I have never heard of a suspect closing his or her eyes and
politely refusing to participate. To do so, however, would
eliminate a test police always use to support probable cause
to arrest. These tests are subjective, both in the officer’s
choice of tests to be performed and in his or her grading of
your performance. The police are looking for “clues” that
suggest you are under the influence. Most police reports
focus on clues that are observed and neglect to mention the
clues that did not occur. The police also tend not to tell the
suspect shortly after each test is performed whether he or she has passed or failed the test. One case tried years ago demonstrates these tests’ importance to the prosecution: A young man led the police on a not-so-merry chase from Route 190 onto Route 290 before he was pulled over at Brosnihan Square. The trooper, enraged, seized the motorist, pulled him out of the car, and arrested him for OUI. A breathalyzer test was refused. The jury found him not guilty because of the absence of evidence. - Refuse politely to explain your decisions. You will never talk your way out of an OUI arrest. The less you talk, the less evidence you provide to the police.
- Do not take any breath test at the scene.
It cannot be offered into evidence and helps the police
officer’s quest for probable cause to make the arrest. - Do not take a breathalyzer.
The only exceptions are that you know you can pass it or that
your license requires it. As for passing it, do not be guided
by how you feel or by barroom bathroom charts that feature
estimates as to weight, number of drinks consumed, and time
period of consumption necessary for a result lower than .08
test result. There are too many other physiological factors
that will have greater bearing on results. People who have a
commercial driver’s license must take the breathalyzer test or
face a year’s loss of that particular license. - Realize that you may be videotaped or audiotaped at
the scene, in the cruiser, in the station, while using a
telephone to make your statutory call, and in your cell.
Surveillance cameras are becoming a fact of life. There
have been cases where suspects are videotaped at the
scene, in the cruiser, at the station, and in a cell. More
likely, the videotaping will occur during booking at the
station. Booking questions must be answered. The camera
is trained on you; speak clearly, stand straight and still, and
be polite. The better you look and sound, the less you sway
and mumble, the better the evidence will be at trial.
These are some thoughts from a trial lawyer who has spent
over three decades before the bar prosecuting and defending
persons charged with OUI.