So a cop stops you for swerving, going too fast, or some other reason, and you have had a few drinks. This is the time to start thinking about legal strategy, believe it or not. When folks come to me after getting charged with DWI I usually have to tell them they were so very helpful and polite and cooperative with the cops that they just smiled and talked their way into a DWI conviction. Don't do it. Let me tell you, the cops are not here to be your buddies. They're not you friends and they're not looking for reasons to let you drive home. That's not how they get paid, see? So if you wanna play hardball, you wanna fight fire with fire, here's what:
1. Beforehand: Just as a general rule, don't do stupid shit in your car that will make you a cop magnet.
Speeding? Running a red light or stop sign? You got a brake light out? Your tag's out of date? Window tint too dark? Insurance expired? Or you're driving your pal's car and any of those things are true for him (remember that cops like to run the license plates and see what the registered owner is up to so they can have some bullshit reason to stop the car.) You give the coppers a reason to pull you over you're asking for trouble. BTW: I don't mean “do it this way so you can drive drunk and not get caught”. I mean WHATEVER you're doing, drive safely and with a car that is 100% legal and in compliance. Cops will look at you with their cop eyes and make a decision whether to look more closely or not. Don't give them any reason. If the cop dreams up some bullshit your attorney can argue that your driving was safe and lawful and the cop was out of his mind to pull you over.
2. On the stop: Put your flashers on and pull over immediately.
Do it safely and lawfully. Don't stop in the middle of the road. Pull on to the shoulder if there is one. Pull into a side street if there's one close by. If there's a convenient parking lot, go there. Don't drive on forever looking for some ideal spot. Do it quickly but be safe about it. Don't turn one way and then change your mind. Be decisive and be quick. Don't hesitate. When you're in court, your attorney can show how safety-minded you were. That's a point in your favor.
3. Parking: Put the car in park, turn the engine off, put the keys on the dashboard, interior lights on, radio off, cigarettes out, and hands on the wheel and roll your driver window down.
Cops get nervous when they have to approach a dark car, engine on etc. Not that we really give damn how they feel but if you do all I say, it shows how understanding you are of the cop's position, which translates to being very much in control of your faculties. People who are in control of their faculties cannot be said to be “appreciably impaired”. More ammo for your hired gun lawyer.
4. Stuff in the car: I certainly hope you have the sense not to drive around with an open beer or weed or something.
If the cop pulls you over and you have done as I say to light up the interior of your car, he'll see all the stuff you have in there. If you have an empty or he smells weed or you have a dead body on the seat next to you, you're asking for trouble. Don't give him anything to look at. Remember “plain view”. If he sees contraband or something suspicious, you're cooked. Don't give him the chance. PS: If you are a carrying a concealed weapon (CCW) person, make sure you comply with those rules too. Make that CCW a part of the docs you show the cop (next part, below).
5. At the window: Cop walks to your car and asks for your license and registration. Have your stuff at the ready.
Don't let the cop say in court that you “fumbled” trying to find it. Judges just love that and will use it as evidence of your state of intoxication (“he couldn't even find his license!”). Make sure you comply with your state's CCW laws if you have lawful concealed weapon. If you have an unlawful weapon, that's your own tough luck. When he asks for the stuff, retrieve it. Do not look around in the car for your shit before he asks you for it unless it can be easily retrieved without looking like you're concealing evidence or trying to find a gun. Fumbling for it is bad. Fumbling for it while the cop is trying to pull you over will make you drive badly and make the cop think you're hiding something. If he's at the window before you can conveniently get to your documents, tell him that you are going to get them from the glove box or your console etc BEFORE you reach for it. That'll make him see you understand his concerns (more in your favor in court).
6. Question time: The cop will want to engage you in chit chat which seems innocuous and benign. It's not.
He will want to know where you're going and where you're coming from and so on. He will want to see how you respond to his questions. Are you being truthful? Are you confused? Are you too nervous? He's looking for that. So don't play to it. This is not the time to whip out the constitution and tell him you refuse to answer questions without a lawyer. It is the time to answer his questions directly and to the point. Do so and do so cheerfully. Do not, however, offer him more info than he requires. Do not try and make friends there by the side of the road so he can send you home and be your pen pal. If he asks where you are coming from you may say “a friend's house” but it is probably a bit too much to say you were at a bachelor party where you were doing tequila shots with ten strippers. See? And don't ask him why he stopped you. Though it may burn in your soul to ask him, let him do all the asking.Talk very little. Every time you open your big fat mouth is an opportunity for him to get a little more info on you. You smelled like booze, you slurred your words, your were talkative like a lonely drunk. Don't do it. Sit calmly—if you can—and answer general questions and leave out the part where you play beer pong or drink every time scarface says FUCK.
7. Search me: This may or may not happen, but cops increasingly have the tendency to ask folks for consent to search the car. Mostly they're fishing for some shit to hang you for.
You can consent or not. If you consent and he finds contraband, you may be fucked. If you do not consent and he searches anyway and finds contraband you may still be fucked but at least you will know you didn't help him fuck you and it may be useful to your lawyer in court. My advice is always to say -politely- “No officer. I'll take a pass on that right now. I just don't have the time. Hope that's ok….” That's it. No more. No less. Don't engage him in some battle of wits or law about whether he can. If he asks then just say no. You are more than welcome to say yes, of course, and that may be advantageous if when he searches he sees that you are not a scumbag with a bunch of drugs and bombs in your car, maybe he finds milk and cookies or kiddie toys (what a swell guy you are!) but usually the best answer is “no thanks”. That's my rule because i don't like the cops poking around in my stuff. You make your own decision.
8. Out of the car buddy: Alright. You did what you could do. The cop still wants you out of the car.
You aren't charged yet but his antennae are up and he wants a closer look. This is not the time to start getting shitty and asking him what for etc etc. The key words here are “polite and cooperative”. Be that. He says get out you say “yes officer” or “yessir” or “OK” or “sure”. You do not groan and roll your eyes or cop an attitude. He's got the upper hand here. You needn't kiss his blue ass. You are to be a gent or a lady. And when you get out, be careful not to look like you're having any kind of trouble. Any mis-step will be interpreted by the Hall Monitor as an indicium of your inebriation. Don't give him anything to use. Don't stumble and fall on your ass. Don't drop your keys. Get out and stand there where he tells you like your boss is asking you to come to the office for a chat. Be respectful but don't be over the top saluting and fawning. And don't lean on anything when you get out if you can help it. Cops love to say in court that the defendant “had to lean on the car for support.” Stand up straight if you can. Of course then he can say you were “swaying” so maybe it's a damned if you do damned if you don't kinda deal.
9. Walk the walk: Alright. Here's where we get tough.
You're out of the car and it's time to do field sobriety tests. The cop will likely make you walk a line, follow a pen with your eyes, count fingers, say the alphabet backwards, do a handstand or some other bullshit that's supposed to indicate whether or not you're impaired. Two basic paths: One, you do what he says. Continue the polite and cooperative bit. But be warned, he's watching you, and not just to see how well you do on the tests themselves. The instructional phase is part of the whole deal too. If you are Mr. Eager Beaver and start a test before he says so or do one little thing other than exactly what he says, when you get into court he'll claim you couldn't follow his instructions and the DA will make the argument that it's due to your impairment by drugs or alcohol. Even if you think you're gonna be a whiz-bang at all the tests he gives you, let me tell you my friend, the only one who's there looking at you is the guy with the badge and the gun. You screw up the instructions even one tiny bit and it will surely be in evidence when we get to court. So be warned. Now here's the other path: Decline. You do not have to participate in these tests. You may decline and it is not illegal to do so. Depending on your jurisdiction however, be warned, beginning here, when you DECLINE to do stuff he asks you, you may be in jeopardy of license suspension. In NC (where I practice) refusal to take so-called “field sobriety tests” is not in itself enough to revoke your license (though read on to see what can) but I cannot guarantee how it is everywhere. You gotta make some hard decisions right about now. If you are absolutely convinced that you will be able to do all he says with flying colors, be my guest. But if you screw it up, walk too many steps, miss your nose, step off the line, count wrong or whatever, he's waiting like a vulture to scoop that info up and write it down to fuck you with in court. Make your decision for Christ right now. Do it or not.
My own advice? Decline.
You may piss the guy off but that's HIS problem. If you're Mr. Politeness that's always in your favor. And the law protects those who decline to be witnesses against themselves (remember the 5th Amendment). Here's another tip: If you have any physical ability that may limit your ability to do the tests, now is the time to let it out. I have a false leg, my muscles are sore, I have a balance disorder, I've had a cold recently, etc etc etc. This ain't fabrication, this is telling him basically “I do not want to do the tests because i have some physical limitations that may affect the outcome and so I decline to take the tests.” resist the urge to engage the cop in a “why it is so” argument. Stick to your guns.
10. Breath test at the roadside: The cop may want you to blow into an instrument called a “PBT” or portable breath test.
He will use the results to corroborate what he already thinks about you and your state of impairment. Ok. Here's more get tough stuff. Two paths again. Blow or not. In NC, you can refuse the test with impunity (assuming you are 21 or over). The test cannot be used for its numerical result in court. Because it is so inaccurate, DMV cannot revoke your license for refusal to blow. The test CAN be used like the rest of your interaction with the cop, however, to help the DA paint a picture of you as being a real sport who'd blow whatever a cop sticks in his face and some uncooperative un-civic-minded asshole who wants to thwart the ends of justice.
My view is this. Fifth amendment says you don't have to be a witness against yourself, so don't.
Just tell the guy, like when he asked you to do the field sobriety tests, that you would prefer not to. End of story. Resist the temptation to get into a legal argument with the guy and don't let him make you feel guilty or shitty for declining. Just be polite and say you would prefer not to. f you have a good reason for it other than just because I say, now is a good time to say it. You have cancer, TB, bronchitis, asthma, you're a heavy smoker, you have been sick, or your lips don't work well, whatever the hell it is. If any of these are true, and you really CAN'T do the test, you better speak up now or forever hold your peace. Now, the other path is fine too, if that's your considered opinion. If you believe to a certainty and you're completely satisfied that VERY FUCKING LITTLE alcohol is gonna show up then go right ahead. Blow away. But be warned, whatever the cop finds, high or low, he is free to use it as he sees fit and may in fact simply rely on what he has observed about you thus far in making his decision to arrest you. If you're absolutely sure that it's gonna come up ZERO, then go ahead. If it does, the cop may decide he was just wrong about you and let you slide because you don't have any alcohol registering on his little gizmo. VERY UNLIKELY! On the other hand, and in my experience, he's already stopped you and wasted a bunch of time on your sorry ass. You think he wants to say to his buddies that he did all that shit and then didn't make the arrest? On balance I'd say the gain that you get from blowing into the PBT is only advantageous to those who haven't had anything at all to drink (and so it comes up 0) and then the cop's gonna start thinking you're stoned or on pills or something (which is not good either since DWI can be for any kind of intoxicant). But again, it's your choice. If you refuse, the cop simply cannot know with any sort of test equipment if you have alcohol in you or not. And that screams “reasonable doubt” in any court of law.
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