You’ve gone out to a fine restaurant. The waiter has handed you a wine list. You make a
selection. When the wine is brought to you, it is better than you imagined. Over the course of
the evening, you end up having three glasses of wine. You’ve got a buzz on – but, hey, you’re
not too bad. You walk cautiously out to the car. You turn on the ignition and head home. You
have only 4 miles to drive. “I can do this,” you say to yourself. You begin to weave in your own
lane of travel when a blue light is noticed to your rear. “Damn it,” you say. You pull over to the
side of the road. Your nightmare is about to begin.
“Good evening, sir.” “Do you know why I stopped you?” You say in response, “Well,
actually, I don’t officer.” The officer begins to smell alcohol and says, “Have you been drinking
tonight?” “I’ve had two drinks.” Incidentally, everybody says “two” or a “couple.” Nobody says
“three.” Why is that?
At this point, the officer has reasonable suspicion to believe you have been driving while
under the influence of alcohol. At this point, you need to know your rights. At this point – at
your weakest and most vulnerable moment – you need to make good decisions. Ugh! This is all
Here is the first thing you need to know. You need to know about the implied consent
law. Know this – in exchange for being given a license to drive, every driver has impliedly
consented to taking a chemical test to determine blood-alcohol content under certain
circumstances. The law essentially says that any person who drives various vehicles (off
highway recreational vehicles, regular vehicles and boats) shall be deemed to have given consent
to physical tests and examinations for the purpose of determining whether such person is under
the influence of intoxicating liquor or controlled drugs, etc.
You have the right not to consent to the taking of chemical tests; however, there is a
penalty for doing so. If a person is put under arrest for DWI/DUI and they refuse, upon the
request of a law enforcement officer, to submit to physical tests or to a test of blood, urine, or
breath designated by the law enforcement officer none shall be given, but, you get punished for
refusing. If this is the first refusal with no prior driving or operating while intoxicated or
aggravated driving or operating while intoxicated convictions: (1) The director shall suspend his
or her license to drive or nonresident driving privilege for a period of 180 days (this is called an
administrative license suspension); or (2) If the person is a resident without a license or permit to
drive a motor vehicle in this state, the director shall deny to the person the privilege to drive and
the issuance of a license for a period of 180 days after the date of the alleged violation. If the
person has a prior driving or operating while intoxicated or aggravated driving or operating while
intoxicated conviction or a prior refusal of consent under this section: (1) The director shall
suspend his or her license to drive or nonresident driving privilege for a period of 2 years; or
(2) If the person is a resident without a license or permit to drive a motor vehicle in this state, the
director shall deny to the person the privilege to drive and the issuance of a license for a period of
2 years after the date of the alleged violation. Who wants to be without their license for a week,
let alone for these periods of time?
Let’s go back to the stop for a moment. As soon as the law enforcement officer sees the
erratic driving and as soon as they smell alcohol and get an admission that drinking has occurred,
the officer is on a fact-finding mission. We’ve had clients who recognized that fact early on and
who wouldn’t put their window down to speak to the officer – they just cracked it a shade. They
did this because they didn’t want the officer to smell alcohol. When the officer came to the
window, the person asked if they were under arrest. When the officer said “no,” they asked if
they could leave. When the officer said “no,” they asked again if they could leave. Eventually,
this standoff leads to some other problems – but often, the problems are for the officer as well as
the individual. The reason – there is often an argument that the arrest occurred without the
officer obtaining probable cause ot believe you were driving while under the influence.
We’ve had people refuse to take field sobriety test (walking the line, touching the nose,
picking up a quarter, submitting to the horizontal gaze nystagmus test. This refusal has been prearrest.
Essentially, the person is declining to give the officer evidence pre-arrest. You don’t
have to give the officer this evidence.
A person does not have to submit to a preliminary breath test. This is the test
administered at the scene. Such a test can be requested; however, you can decline to take the
test. Failure to submit to the test does not constitute a violation of the implied consent law.
Evidence of a failure to submit to a preliminary breath test shall not be admissible in court in any
prosecution under the DWI/DUI law, except for the purpose of determining whether the officer
had probable cause to arrest the person.
If the officer arrests you on less than probable cause, then the arrest is invalid. If there are
no field sobriety tests and no road side breathalyzer result, there are times when it is difficult to
obtain probable cause. Probable cause is even more difficult to attain when someone refuses to
open their window and speak freely to the officer.
But look – the best antidote to DWI/DUI is not to drink and drive after getting a buzz on.
In my own case, I avoid ever putting myself in the position of being suspected of driving while
under the influence. Don’t do it! Don’t ever do it! That way, you don’t have to remember some
of the anecdotal information I’ve provided in this blog.