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What are my rights if I’m arrested for DWI?

If you are arrested for DWI, you have rights. That doesn’t mean you can evade arrest or, in some cases, refuse a breath or blood test, but rather, it means that you don’t have to willingly comply with all “requests” made by the officer.

DWI and Your Rights During the Traffic Stop

Most Driving While Intoxicated (DWI) investigations begin when a police officer observes someone driving whom he thinks committed a traffic violation and initiates a traffic stop. Once the officer has turned on his emergency lights and sirens, you do not have the legal option to drive away. Doing so would make matters much worse because it’s considered “evading arrest in a motor vehicle” which is a felony offense.

Our advice is simple: DON’T DRIVE AWAY! USE YOUR RIGHT BLINKER, MOVE TO THE RIGHT, AND PARK OUT OF THE FLOW OF TRAFFIC. A PARKING LOT IS THE BEST PLACE TO STOP.

This mandatory stop is considered to be either a temporary detention or arrest. Both invoke your Constitutional rights under the 4thAmendment which states:

The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be, searched, and the persons or things to be seized.

In order for the police officer to legally stop you, he must be able to articulate the facts that (probable cause) show you committed a traffic violation. In most DWI cases, the officer may cite a traffic law violation such as:

  • Speeding
  • Failure to maintain a single lane, or
  • Failing to stop at a designated stop sign.

Once you’ve been pulled over, keep in mind that the side of the road is not the time or the place to question the officer or begin your legal arguments. Always be polite and remember that the less said is generally the best action you can take. Our advice is to wait for your DWI attorney to examine the evidence supporting or refuting the validity of the initial traffic stop. You’ll have four opportunities to exercise your right to legally challenge the stop:

  • Administrative License Revocation (ALR) hearing,
  • At the initial court appearance where probable cause must be evaluated by the Judge,
  • Later during a motion to suppress hearing, (A hearing where the defense requests the Judge to exclude certain evidence from trial)
  • Or, if necessary, at trial.

YOUR RIGHTS: You have the right NOT to be stopped without legal justification. If the officer has no probable cause, then he has violated your 4thAmendment rights during his initial contact and the State will have little to build a valid DWI case upon since all evidence gathered after that point is inadmissible.

DWI and Your Rights During Personal Contact

After the officer initiates the traffic stop, whether invalid or not, he will make contact with you. He will ask for your driver license and registration and may try to make “small talk”. “Small talk” is a polite tactic to gather evidence against you. Here the officer will solicit as much information from you as he can–especially if he is suspicious of DWI.

He’ll ask things like:

  • Where are you coming from tonight?
  • Where are you headed?
  • Have you had anything to drink today?
  • Are you coming from a bar?
  • What smells like alcohol?
  • Do you know where you are right now?

While you’re talking, the officer will be observing your body language, how you answer the questions, your voice and whether you’re slurring your words. He’ll also be looking for the smell of alcohol on your breath.

YOUR RIGHTS: As you talk with the police officer during the personal contact, remember these three important things:

  • He is not legally required to read you your Miranda warnings at this point.
  • Your conversation is almost certainly being recorded by either his body camera or a patrol car camera with a microphone attached to his uniform.
  • Most importantly, you have the right to remain silent. You may politely state that you would like to talk to your attorney before answering any questions or that you don’t want to answer questions. This approach may not keep you from being arrested, but it will keep you from voluntarily incriminating yourself with the answers you give.

DWI and Your Rights During the Field Sobriety Tests

After the officer talks with you, he may suspect a possible DWI and ask you to step out of your vehicle. While cameras are recording, he’ll ask you to perform a series of exercises known as Field Sobriety Tests where he’ll be looking for:

  • Any sway or stagger,
  • Any delayed responses or faulty movements, and
  • Any imperfect field sobriety performance which will be up to his discretion.

While in his charge, you must comply with the officer’s reasonable commands like exiting your vehicle, but you don’t have to volunteer to incriminate yourself. You also don’t have to perform any field sobriety tests- especially an on-scene breath test.

The most common “requested” field sobriety tests are:

  • The Horizontal Gaze Nystagmus or HGN test which involves the officer “requesting” that you stand with your feet together, hands to your side and your head still. He will then ask that you follow with your eyes only an object in his hand—such as a pen.

The officer is looking for the involuntary eye-jerking known as Nystagmus (also known as “dancing eyes”). Enhanced Nystagmus can indicate that someone’s BAC is above a .08. Diseases such as multiple sclerosis, brain tumors, diabetic neuropathy, or neurological issues brought on by a head injury may also cause Nystagmus.

Again, you don’t have to doDWI Sobriety Tests this test!

  • The One leg stand (OLS) involves the officer “requesting” that you stand with your feet together, hands to your sides, and raise one foot about six inches off the ground while counting out loud. The officer is observing 4 types of clues:
    • using arms for balance,
    • sways while balancing,
    • hopping, or
    • putting your foot down during the test.

All of these could be signs of lost motor skills or coordination, but they could also be the product of an exercise that’s just difficult and designed to throw someone off balance.

Again, you don’t have to do this test!

  • The Walk and Turn (W&T) involves the officer “requesting” that you stand heel to toe with your arms to your side and walk 9 heel-to-toe steps forward. Then he’ll ask you to turn around with a series of small steps, then take 9 heel-to-toe steps back.

The officer is observing 8 types of subjective clues:

  • cannot keep balance,
  • starts too soon,
  • stops walking,
  • steps off the line,
  • takes the wrong number of steps,
  • misses heel-to-toe,
  • uses arms to balance, or
  • turns improperly.

All of these “missteps” could be a sign of intoxication, but they are more likely because the exercise is flawed. Most people find them too difficult since they’re designed to throw the participant off balance. In many cases, people “fail” because the officer gave unclear directions, or the participant couldn’t hear them.

Once again, you don’t have to do this test!

YOUR RIGHTS: Your participation in the above-listed Field Sobriety Tests is “requested” by the officer and is not a lawful command. That means that you have the right to refuse any and all tests that you think may show you in an unfavorable light and provide evidence that may incriminate you. You can request your attorney’s presence before any test or subsequent investigation. 

Your Rights and the DWI Breath and Blood Tests

Usually, the final stage in a DWI investigation occurs after you’re arrested. This involves a “request” that you give a breath or blood sample. If done correctly, the officer will hand you a copy of Statutory Warning or form DIC-24 and read it to you as you follow along. This form requests that you voluntarily consent to provide a blood or breath sample and explains the consequences if you refuse:

  • your license may be suspended for a longer period of time than if you had consented, and
  • your refusal could be used against you in a subsequent prosecution.

YOUR RIGHTS: You have the right to:

  • See and be read this form so that you understand your right to refuse any blood or breath test and the consequences of doing so. If the officer requests the sample without showing or reading the DIC-24 form with you, any subsequent test as part of the DWI investigation may be suppressed.
  • If you refuse to give a blood or breath test, the officer may seek to get a sample of your blood through a legally valid search warrant signed by a judge. If a warrant is issued, you cannot refuse the test. That said, an effective DWI attorney should closely evaluate whether or not the officer followed all of the legally required steps before securing a valid blood draw.
  • If you volunteer to provide breath or blood, you waive many of the legal requirements involved in a breath or blood draw. Remember, you have the right to not incriminate yourself! By refusing to give a sample of your breath or blood, you are simply saying you don’t want to help the government prosecute you.

Under our law, authorities are supposed to respect and follow each of your legal rights. Police blood and breath testing are done for the sole purpose of gathering evidence against you. Moreover, it is often the case that their testing is flawed giving rise to erroneous results.

For example, breath samples are not saved or preserved for re-testing and blood samples are subject to faulty collection and testing procedures that flow from contamination and/or operator error. Clearly, the best course of action is not to participate in tests that produce erroneous results.

Your Rights During the Formal Arrest for DWI

If you are formally arrested for DWI, the officer must read you your Miranda rights which reads:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford on, one will be appointed to you by the court. With these rights in mind, are you still willing to talk with me about the charges against you?

Of course, the only legally educated answer to that question is, “No, I wish to speak to an attorney.”

If you have been arrested for DWI, DUI or BWI (Boating While Intoxicated), call the DWI attorneys at Trichter & LeGrand 24/7 to schedule a free consultation.