The Layman’s Guide on How to Handle a DWI Stop
WHAT IF I’M STOPPED FOR DWI? WHAT SHOULD I DO ?
1. Think first, use common sense, and be open minded !
First, don’t drink alcohol or use drugs and then drive! No one likes
drunk drivers as they are clearly a danger to themselves and others. No
sane person would be happy to be on the receiving end of a 3,500 pound
projectile being piloted by an intoxicated person.
Second, recognize that police officers perform a very difficult and dangerous
job, and that we all owe the good officers an extreme debt of gratitude
for their efforts. However, it should be remembered that police officers
have a great deal of discretion in deciding to arrest a person. Here,
it is appropriate to note that experience has proved, time and time again,
that a person’s lack of manners and overt rudeness is the quickest
way to being handcuffed and placed in the back seat of a patrol car. You
should also recognize the reality that DWI, for purposes of an officer
making an arrest, is strictly his opinion that the crime has been committed.
Like all jobs that human beings perform, there will be some officers that
are better at it than others. Accordingly, police are not only subject
to making human mistakes, but also, to unconscious psychological influences
which almost always gravitate toward guilt.
It must also be noted that police work is very competitive, and as a result,
officers like to win their cases. Here, too, experience has shown that
more than a few officers have misrepresented facts and told falsehoods
to win their case. One should keep an open mind as to the possibility
of other motivations of the officer than simply that the driver was intoxicated
in determining the reason for a DWI arrest. For example, recent evidence
has demonstrated that most officers who make numerous traffic and DWI
arrests actually receive increased pay as a result of their subsequent
court appearances for those arrests. Indeed, in some cases the officer,
in addition to receiving benefits of a private patrol car for his use
only, and having his days off and work hours fixed, receives an amount
of extra money equal to his regular pay for court appearances, i.e., his
2. What do I do if the officer signals me to stop by turning on his emergency lights ?
Drive to the right lane as cautiously and quickly as possible, and continue
there until you can either safely park on the shoulder of the road or
in a parking lot. Next, take your vehicle out of gear, shut off the engine
and radio, and turn on your emergency flashers. Such quick and cautious
actions on your part will indicate that your normal mental faculties are
not impaired. In addition, if the officer just wants to pass your vehicle,
then your actions will allow him to do that in a safe manner.
3. Having drawn the black bean by being stopped, should I get out of the car ?
Yes! However, attempt to keep your hands visible and do not make quick
movements. Do not place your hands in your pockets. Exit your car and
walk to the right rear of your vehicle and wait for the officer. Do not
lean on your vehicle or stand between it and the police car. Here, it
must be understood that the officer does not know you or your intentions
yet. This is an extremely critical time for him, as he will be looking
for a possible weapon you may have or for any threat to his safety that
you may present. Recognizing the officer’s initial apprehension
and the ease at which it may be lessened, you can establish an initial
positive contact with him, rather than a negative one.
4. Is there anything I should do before getting out of my vehicle ?
Yes, take your driver’s license and proof of insurance card out of
your wallet and bring them with you to give to the officer. These two
items will usually be the first things he will ask to see. If you were
to hand your wallet to the officer, with the license and insurance card
in it, he would not take it for fear of being accused of removing money
or something else of value. Accordingly, since he would then ask you to
remove the license and insurance card from it, you should do that before
leaving your vehicle. These actions will demonstrate your cooperation
and will lessen the officer’s fear factor as your hands will always
be visible to him. These actions will also evidence that you have not
lost the normal use of your mental faculties, as the actions were both
reasonable and prudent.
5. If asked, should I admit to drinking an alcoholic beverage?
This is a tough question but the answer is generally "yes". Since
you will likely have an odor of an alcoholic beverage on your breath,
it makes no sense to deny that you have had a drink. In fact, with the
odor of an alcoholic beverage present and you making a denial, it is only
human nature for the officer to find that you are less than credible.
This fact to the officer would then likely give rise to a suspicion that
you are trying to hide the fact that many drinks were consumed.
6. Do I admit to how many, where and when? Is honesty the best policy ?
It depends. Any admission more than "two" will likely result
in your arrest. This is especially true where the officer fails to ask
"when?" because, for example, 4 beers is much different than
4 beers over eight hours.
As to the second and third questions, it is not whether you tell the truth
or fudge on the truth that is important. Rather, the answer really lies
in whether or not you tell the truth or don’t answer at all. In
this regard, the truth has resulted in many non-intoxicated drivers being
arrested, and has subsequently cost them a small fortune for bond, automobile
towing, time off from work and an attorney to prove their innocence.
7. If I’m not going to answer, what do I do ?
Keep in mind that both our Federal and State Constitutions guarantee that
you do not have to incriminate yourself. Politely ask the officer why
he stopped you and if you are presently under arrest. Under our law a
person can be under arrest and yet not be told so.
Where the officer indicates that you are under arrest then you should immediately
inform him of your desire to have an attorney present for any further
questions. Do not refuse or agree to perform police field sobriety exercises.
Rather, tell the officer you want advice from a lawyer to help you decide
if you will refuse or agree to perform them.
On the other hand, should the officer say you are not under arrest, then
a different approach is in order. Politely ask: "Am I going to be
written a traffic ticket?" And if so, "Will I be free to leave
upon your completion of it?" Where the officer says: "Yes"
to both questions, count your blessings, remain still and non threatening.
Be courteous and only speak when spoken to – never volunteer information
as that will only serve to prolong your roadside stay. Should he again
ask about alcohol consumption, inform him of your choice not to answer
any questions but those related to the specific traffic offense —
and, stick to your right not to incriminate yourself.
Well, what about a scenario where the officer says: "You’re
not under arrest, but you can not leave". This is close to the typical
DWI scenario. Here, the safe thing to do is to inform the officer that
you would prefer not to answer any more questions and would like to have
a lawyer present. Be polite and not talkative! Doing this, you have in
effect "punted the ball" to the officer. He must now choose
to let you go or to prolong his investigation. Again, if he lets you go,
count your blessings and drive safely. Where he prolongs your roadside
stay, he must be careful not to violate your federal and state constitutional
rights to not be unreasonably seized. The invocation of your rights to
remain silent and to an attorney’s presence will make it more difficult
for the officer to avoid violating your constitutional right to not be
To further explain, a police officer, absent any belief that criminal activity
is afoot, has a right to walk up to any person in a public place and talk
to them. However, the person may simply walk away. Indeed, our law is
clear that the person’s action in walking away cannot be used as
evidence that he is guilty of something, i.e., that the invocation of
a constitutional right cannot be equated to guilt. In such cases where
the officer, through use of his police status, either impliedly or expressly
detains the person, he violates the individual’s right not to be
To lawfully justify a brief detention of a person, the officer must have
a specific and articulate reasonable suspicion that the person is presently
involved in criminal activity. This justification cannot be legally made
on the basis of a simple hunch or a gut feeling. The detention must be
narrowly limited in both its duration and scope so as to allow the officer
to maintain the status quo so that he may dispel or affirm his reasonable
suspicions. If the officer waits to long or unreasonably proceeds beyond
the purpose for his initial detention, then he again violates the person’s
constitutional right not to be unreasonably seized.
Lastly, where the officer actually arrests the person he must have a greater
quantum of evidence than merely a reasonable and articulate suspicion.
Indeed, he must have what is constitutionally termed "probable cause"
to believe a crime has occurred. "Probable cause" has been defined
by our courts as a measure of evidence that would lead a reasonable person,
based on that person’s experience and training, to believe that
a crime has occurred. This probable cause measure requires a lesser quantum
of evidence than is required to convict a person of a crime (proof beyond
a reasonable doubt) or to win a civil lawsuit (preponderance of the evidence
In any situation where an officer "detains" a person on less
evidence than "a reasonable and articulate suspicion" or "arrests"
a person on less evidence than "probable cause", he violates
that person’s constitutional rights not to be unreasonably seized.
The remedy for this violation is to exclude from the prosecution’s
case any and all evidence that was derived from the violation.
Accordingly, when you find yourself in the typical DWI scenario (i.e.,
where you’re being detained for a DWI investigation but you’re
not yet arrested) it is best to be polite, to invoke your rights to remain
silent, and to have an attorney present, to not accidentally incriminate
or convict yourself, and to let the officer do the best he can with the
evidence he can legally develop.
8. If I’m arrested and transported to the police station, do I perform
the sobriety exercises before a video camera recorder, submit to the Intoxilyzer
test and answer questions concerning drinking ?
Maybe, never and maybe! First, however, immediately inform the officer,
and all officers thereafter, that you want to remain silent until such
time as you can contact an attorney and have a private consultation with
him as to anything and everything the officer will ask you except for
bail. Be careful to tell the officers that you are neither refusing nor
agreeing to cooperate with them. Rather, tell them that your decision
to refuse or agree will be premised upon the advice you receive from your lawyer.
Sometimes officers will say "you can’t have a lawyer yet".
This often occurs at the alcohol concentration test request and the video
exercise test request stage. The "you can’t have a lawyer"
statement may or may not be true depending on the circumstances of your
case. But, you will have no way of verifying its truth until you speak
to your lawyer. Thus, the best thing to do is to remain polite but firm
in your requests to speak to an attorney. Simply put, do not take "no"
for an answer.
When the police allow you the opportunity to use the telephone immediately
use it. Call our office at 940.580.2899.
Upon reaching an attorney on the telephone be sure to ask the officer for
a chance to speak with the lawyer in private. Where the police refuse
to allow you privacy, they violate your right to an attorney. Absent giving
you privacy, the police provide you with only a warm body to talk to on
the telephone. This is so because the lawyer, in order to maintain the
attorney-client privilege and to protect your right to remain silent,
must tell you not to say anything. Here, it is axiomatic that a lawyer
can only give you proper advice where you can first tell him what has
happened (i.e., he applies the law to the facts and he accordingly advises
you what to do).
Always do exactly what your lawyer tells you to do – nothing more
and nothing less. If he tells you to perform exercises before a video
camera and/or to answer police questions concerning alcohol consumption,
then do it.
In regard to the intoxilyzer breath test, if your lawyer tells you to simply
take it, we’d recommend changing lawyers. It is, at least in the
authors’ opinion, wrong to advise a person to take a test on a machine
which is incapable of being independently verified as accurate and reliable.
It is equally wrong to advise a client to submit to such a test where
the police fail to preserve, and in effect destroy the breath specimen
they will ostensibly use to prove you guilty. Personally, we’re
not going to take a test that can’t be rechecked to determine it’s validity.
Arguably, the best indicator of a person not having lost the normal use
of his mental faculties is the fact that he simply won’t take the
breath test. Here, we believe a person would have to be drunk to agree
to take a police test that is so enmeshed in debate about its non reliability
and inaccuracies and where the police machine’s own manufacturer
doesn’t warrant it fit for any particular purpose – including
breath testing. Under such circumstances, only a drunk, insane, uneducated,
or coerced person would submit to a breath test where the penalty for
failure might result in 180 days confinement, a $2,000.00 fine and a year’s
driver’s license suspension, not to mention other social and automobile
insurance consequences, as opposed to a possible ninety day suspension
for test refusal. In other words, we would argue that, knowing the above,
a person demonstrates no loss of his normal mental faculties by refusing
the test, but does so by agreeing to take it. Clearly, considering all
the consequences and facts noted, it cannot be reasonable and prudent
judgment to take such a non-preserved test. Let us add one other "believe
it or not" fact here just for emphasis. Most police officers join
in our opinion and would not take the breath test either!
If you are seeking aggressive criminal representation by an experienced
criminal defense attorney for your Denton county theft case case or arrest
in Denton County, contact the offices of Tim Powers today. There is no
charge or obligation for the initial consultation. 940.580.2899.
*Tim Powers is an attorney licensed to practice law by the Supreme Court
of Texas. Nothing in this article is intended to be legal advice. For
legal advice about any specific legal question you should directly consult