Before reading the following, please remember that I am not your lawyer, we do not know the particulars of your case and am only speaking in generalities. If you wish to call the office for a free consultation, we would be more comfortable in rendering an opinion in your specific case. That being said there are some do’s and dont’s you may wish to follow when stopped by the police.
Never admit to consuming alcohol, even earlier in the day. You are not required to speak with the police or to answer their questions outside of providing them your ID, insurance, registration, etc.
Do not participate in any Field Sobriety Tests (FSTs) such as the One Leg Stand, Walk and Turn, or the Horizontal Gaze Nystagmus Eye Test (HGN).
By participating you would simply be giving the prosecution more evidence against you. There is NO legal requirement to participate in any field sobriety test, and most people would do poorly on such test, regardless of what they consumed. Further, any failures would certainly be used against you, painting a picture of intoxication for the jury.
If you are out in the early morning, particularly on the weekends, there is a good chance that you will be stopped (rightly or wrongly) for violating a vehicle and traffic law such as disobeying pavement markings or a similar minor traffic violation. Cops have absolutely no tolerance for any early morning “perceived” traffic violations since they want to stop you, look and speak with you, not so much for the violation they will testify that you committed (reason for the car stop), but because they assume anyone out at 2 or 3 o”clock in the early morning has been drinking. Anyone who works nights and drives home early in the morning will verify this happens.
Your license, registration and insurance card should be readily accessible so they can be handed immediately to the police officer so as to avoid the cop observing fumbling or difficulty in locating these documents.
When asked where you are coming from, never admit to coming from a bar or a party as these preliminary statements can be used against you in any criminal charge. You have the right to remain silent and not answer such questions! You should exercise that right appropriately!
If asked to step out of the vehicle, inquire if that is a demand or a request. If simply a request, decline as you should not be participating in any tests the officer is attempting to perform. If it is a demand, then step out trying not to lean on the car (as this is a commonly used sign of intoxicated) and still refuse to participate in any testing. Do not submit to the eye test (HGN) or the preliminary breath test conducted in the field as a positive alcohol reading is grounds for an arrest.
In NYS, if convicted of refusing to blow into the hand held alco-test device in the field, the charge (VTL 1194.1b), carries a two point penalty on your driving record. Since suspension happens at eleven (11) points it should not be a factor when you consider what evidence you may be giving up, namely a positive alcohol reading. This unit, powered by a fuel cell, is notoriously unreliable. It does not differentiate between alcohols so if you were varnishing a table earlier or you used a breath spray it would generate a positive reading. It is so unreliable it can only be used in Court to contradict your testimony that you had no alcohol at the time of arrest.
If you are arrested and taken to the police station, you will be asked to submit a breath sample into the Breathalyzer. This is where a refusal, if sustained at a future DMV Hearing, will generate a one year revocation. It’s easy for a NYC resident to say NO, but its tough in the suburbs where there is little mass transportation. The problem is, if you blow too high (depends on the County) there will be no offer to a reduced charge, such as a DWAI, a traffic infraction not a crime.
Additionally, if you blow .18 or higher you will be charged with Aggravated DWI carrying higher fines and additional penalties.
You have to use your discretion on if to blow or not depending on how much alcohol you consumed in the last few hours.
If you are arrested, upon release, immediately go to a hospital for a blood test to determine the amount of alcohol in your system. This reading can be used to contradict the “breath” reading that the DA may use to have you charged with DWI.
Do not answer a long questionnaire regarding your medical condition, diet, activities in the last 24 hours and other information. Simply refuse to answer any questions other than pedigree information such as name, license, registration, ss# and insurance info. Always be respectful and courteous to the officers and police personnel. Be careful not to be lulled into a false sense of security that the cops are your friend. They are not and anything you say can and will be used against you.
Be careful that the person coming to get you is sober as many times the cops breathalyze the arriving driver and arrest that person for DWI.
If you or someone you know is facing a Driving While Intoxicated or Driving While Ability Impaired Charge in the Hudson Valley Region, Call the Harold Dee Team today for a free consultation.
