Frequently asked questions regarding what to do when stopped for DUI

Question:

What should I do when I am stopped?

Answer:

First, stay calm and think rationally. Next, don't forget that police officers keep our streets safe by doing their job and should be appreciated. However, when an officer accuses someone of drunk driving, it is merely the officer's opinion that they are driving under the influence. His or her opinion can be influenced by any number of factors including human error and your manners. Therefore, it is imperative that you are polite. The easiest way to find yourself in a confrontation leading to an arrest is to be blatantly rude.

What should I do when the officer turns on his police car lights behind me?

Carefully move over into the right lane and then onto the shoulder of the road or into a parking lot where you can safely stop your car. Turn off the engine and the radio. Maintaining control and obliging the officer's request will point away from any mental impairments, such as intoxication.

Question:

What should I do next?

Answer:

Be sure that your license, registration and proof of insurance are handy. Get them ready as the officer approaches your car.

In order for a police officer to stop you, there must be what's called "probable cause" or some reason for the stop communicated to you. It is usually a simple traffic violation such as speeding or having a taillight out that causes the stop. It is onward from here that DUI charges occur if the officer believes that the driver is intoxicated. In order for it to be considered probable that a crime has been or is being committed, the officer must have evidence. However, the evidence he needs for a legitimate stop is only probably cause, and does not have to meet the "beyond a reasonable doubt" standard. Beyond a reasonable doubt refers to the standard of proof that the state must bring against you at trial, that you were intoxicated to a level that made you incapable of driving safely, and that you were operating or attempting to operate a vehicle.

If an officer arrests a person on less evidence than "probable cause", he violates that person's constitutional rights not to be unreasonably seized. In that case, any evidence obtained would be inadmissible from the prosecution's case.

Question:

What do police officers look for when searching for drunk drivers on the highways?

Answer:

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

Turning with a wide radius

Straddling center of lane marker

"Appearing to be drunk"

Almost striking object or vehicle

Weaving

Driving on other than designated highway

Swerving

Speed more than 10 mph below limit

Stopping without cause in traffic lane

Following too closely

Drifting

Tires on center or lane marker

Braking erratically

Driving into opposing or crossing traffic

Signaling inconsistent with driving actions

Slow response to traffic signals

Stopping inappropriately (other than in lane)

Turning abruptly or illegally

Accelerating or decelerating rapidly

Headlights off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

Question:

If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

Answer:

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication - and it may explain the odor of alcohol on the breath.

Question:

If I am asked if I have had any alcoholic beverages, should I say yes?

Answer:

Generally, alcohol can be smelled, so even if you have had just one drink, admit to it. This honesty right up front will make the officer more likely to listen to you. Besides, if alcohol is detectable, denying that you have had anything to drink makes you less credible. However, anything you say will be used against you, so you can always reserve the right to not say anything.

Question:

If asked, should I be truthful about how many I have had, and over how long of a time period?

Answer:

It depends. If you admit to having any more than two drinks, it is likely that you will be arrested for DUI. It gets especially difficult to assess whether or not you are intoxicated when the officer does not consider how long it took you to have those 3 drinks, per se. Consuming three drinks in 45 minutes is much different than three drinks over an entire afternoon.

An option is always to simply not answer the questions at all. I have certainly enjoyed winning DUI trials because the State had little evidence due to my client not saying anything or participating in anything when they were stopped and arrested. Unfortunately, sometimes, non-intoxicated people have been arrested and made to pay a substantial quantity of money for bond, automobile towing, and attorney's fees to mention a few, just to clear their names.

Question:

What should I do if I am not going to answer?

Answer:

The Fifth Amendment to the Constitution affords you the right not to incriminate yourself. Kindly ask the officer why you were stopped and whether or not you are under arrest. If you are, you have the right to see an attorney before answering any other questions. Let the officer know that you would like to do that before he or she questions you anymore. If you are asked to take a field sobriety test, mention again that you would like to be advised by your attorney on if that is a good idea or not. You are not refusing or agreeing to take one, you'd just rather keep all of your bases covered with counsel first. However, if you are told to get out of your car, you must oblige.

If the officer says that you are not under arrest, then ask if you are going to be given a traffic ticket, and if you will be allowed to leave afterwards. If the officer says yes, continue to be courteous and quiet. Do not volunteer any information of any kind. If he asks about your consumption of alcohol again, kindly tell him that you choose not to answer any other questions besides those regarding the traffic offense you are being stopped for.

In the event the officer tells you that you are not under arrest but cannot leave, the best thing to do is to inform the officer of your desire to obtain the advice of a lawyer before answering any more questions. Don't forget to be polite. By doing this, you have caused the officer to make a choice: either he must now choose to let you go or to wait for you to contact an attorney, in effect, extending his investigation at the scene. If he lets you go, drive cautiously away.

Most likely, the officer will ask you to take a PBT. This is a breath test which measures your alcohol level. This test is not admissible in court. If you do not take it, the officer will then arrest you and most likely issue you a ticket. If you do take it, the officer will most likely issue you a DUI if you blow at .08 or greater. Also note, that is Kansas you do not have a right to an attorney regarding this test.

If the prolongs the investigation, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. By remaining silent and waiting for an attorney to be present, you make it more difficult for the officer to reasonably seize you. In other words, it is not considered an admission of guilt to use your constitutional right not to self incriminate. But again, the officer will most likely rely on the PBT.

In any event, if and when you find yourself in the classic DUI situation (where you're being held for a DUI/DWI investigation but you're not yet arrested) it is best to be polite. You should invoke your right to remain silent. This way, you are letting the officer do the best he can with the evidence he can legally find.

Question:

What is the officer looking for during the initial detention at the scene?

Answer:

The traditional symptoms of intoxication taught at the police academies are:

Flushed face

Red, watery, glassy and/or bloodshot eyes

Odor of alcohol on breath

Slurred speech

Fumbling with wallet trying to get license

Failure to comprehend the officer's questions

Staggering when exiting vehicle

Swaying/instability on feet

Leaning on car for support

Combative, argumentative, jovial or other "inappropriate" attitude

Soiled, rumpled, disorderly clothing

Stumbling while walking

Disorientation as to time and place

Inability to follow directions

DUI FAQ #2

DUI FAQ #3