Intoxication: Alcohol & Drugs

A citizen can be charged for DWI in multiple ways. The State can charge a citizen based on consumption of alcohol alone, a combination of alcohol and drugs, or drugs alone. The consumption of illegal drugs can be used by the State to attempt to show intoxication. However, it is not uncommon for the prosecutor to attempt to show intoxication due to prescription medications a citizen is taking as prescribed by the doctor. There are many issues that will play a significant part in the outcome of your case. It is absolutely imperative to retain an experienced aggressive attorney to defend you against the DWI allegations.

How to handle the DWI Stop

There are two different kinds of field sobriety testing formats used by law enforcement officers; Standardized Tests and Non-Standardized Tests. However, all of the tests focus on balance and divided attention ability. Divided attention is the citizen’s ability to listen to a lengthy, detailed list of instructions while performing balancing or body position exercises at the same time; then the citizen is required to carry out all of detailed list of directions perfectly, allowing for only 2-3 mistakes on each of the tests.

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How to handle a stop and investigation of DWI

If you are pulled over by an officer and the officer smells alcohol on your breath or in your car, the officer will ask you to step out of your car and will begin to investigate you for DWI. It is important to understand what is happening and how to handle the investigation to protect yourself and your rights.

 

Be cautious when confronted by any law enforcement officer.

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You have the right to refuse all tests

When stopped by a police officer, sheriff’s deputy or state trooper, the first thing to know about roadside field sobriety testing is that you are not required to perform them!

 

It is your right to refuse these field sobriety tests and absolutely in your best interest to refuse them whether you are stone cold sober or have some alcohol in your system. Unfortunately, the police are not required to explain that you do not have to take these tests. The police make hundreds of arrests a year and are wise on how to obtain your cooperation.

 

It is important to understand that every mistake you make during testing is considered a “clue” that you are intoxicated. The Eye Test only requires 4 “clues” to indicate you are intoxicated. The Walk and Turn test and One Leg Stand test both only requires 2 mistakes to indicate you are intoxicated. The bottom line is that once you make 2 mistakes on either of these tests, you will be arrested for DWI.

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Eye Test (Horizontal Gaze Nystagmus- HGN)

Rather than asking if you are willing to take some tests, the officer will typically just begin the test by telling you to stand with your arms to your side and follow the light with only your eyes by not moving your head. You have the right to refuse to perform this eye test. This eye test is called the Horizontal Nystagmus Test (HGN).

 

There are many causes of HGN other than alcohol. However, the state will assert that the reason the officer saw signs of HGN is due to alcohol. This test cannot be recorded so that we can see for ourselves what your eyes look like during the test…left only with what the officer claims he observed. In my experience, it is very rare for an officer to observe less than 4-6 “clues” on this test.

 

I have seen cases that came back with a blood test with a BAC of 0 and the officer had still claimed to see these clues of intoxication. You should always refuse to perform this test.

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Walk and Turn Test

The Walk and Turn test will actually begin before the officer tells you it is time to start. The officer will instruct you to stand in a heel to toe position with your arms by your side. He will then tell you not to start before he tells you to start. However, for arrest purposes the test already started when you got into the heel to toe position. If you step out of that position that is counted against you as 1 “clue” of intoxication before the officer has even told you to start the test. You will be required to stand in that position while the officer gives you a lengthy set of instructions.

 

The basic test consists of you walking the line 9 steps out and 9 steps in return. There are 8 possible “clues” on this test and there are 96 opportunities for you to make a mistake. This means you must perform 96 tasks while making only 1 mistake or the test will “indicate” you are intoxicated. The officer only needs you to make 2 mistakes and he can use this as evidence to arrest you for DWI. The officer is not required to explain to you what he will count off for, nor will he.

 

It is not uncommon for clients to tell me they believed they “passed” this test; however, the officer claims they made 2 or more mistakes. Mistakes that my client wasn’t aware of committing.

 

If you were to take a test in school and only made 2 mistakes, you would receive an “A”. When you take the Walk and Turn test and make only 2 mistakes, you get arrested for DWI.

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One Leg Stand Test

The One Leg Stand test will also begin before the officer tells you it is time to start. The officer will instruct you to stand with your feet together with your arms by your side. He will then tell you to stay in that position until he tells you to start. However, for arrest purposes the test started when you got into this position. If you step out of that position while the officer is explaining the rest of the test, you will already have 1 “clue” of intoxication before you even think the test is started.

 

This test will require you to balance on one leg for 30 seconds without swaying at all, using your arms for balance at all, keeping both legs perfectly straight the whole time, and counting out loud (one thousand-one, one thousand-two, etc.) for the full 30 seconds. The officer only needs you to make 2 mistakes and he can use this as evidence to arrest you for DWI. The officer is not required to explain to you what he will count off for, nor will he.

 

It is not uncommon for clients to tell me they believed they “passed” this test; however, the officer claims they made 2 or more mistakes. Mistakes that my client wasn’t aware of committing.

 

If you were to take a test in school and only made 2 mistakes, you would receive an “A”. When you take the One Leg Stand test and make only 2 mistakes, you get arrested for DWI.

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Questioning by the Officer

After the office stops and asks for your Driver’s License and insurance, he will most likely begin asking you a number of questions. Some will be related to alcohol and some will seem unrelated and irrelevant to you. Make no mistake, if an officer asks you a question, there is a reason and it is helping him to gather evidence against you. You have the right to refuse to answer these questions just as you have the right to refuse to perform sobriety tests.

 

Don’t act out or say too much. Don’t agree with them when asked “don’t you think you’ve had too much to drink to be driving tonight?” Often the officer will ask you on a scale from 1-10 how intoxicated are you? Even answering 1 is an admission of intoxication. Remember just having alcohol in your system does not equal intoxicated and “buzzed” does not equal intoxicated. Every word you say is being recorded!  I like to think of it this way.  The police are not generally bad people, but when being investigated for DWI or any criminal offense, they are your legal enemy.

How do I refuse to perform tests or answer questions?

I advise my clients to politely refuse test or answering questions. Simply tell the officer the truth – This seems like a serious matter and you want to cooperate however you want to talk to an attorney first. You will not be able to talk to an attorney at this point but this will explain why you are refusing tests and questioning. Below are a couple of videos with good examples of how to politely refuse the tests and questions.

Charged with a DWI? We’ll fight for you.