What Should I Do If I Get Pulled Over For a DUI or DWI?
The following is what may happen if you are pulled over for suspicion of driving while intoxicated. This page is for information purposes only and not intended as legal advice. No attorney-client relationship is established by reading this page.
If pulled over for a DWI or DUI, do not go into panic mode. In North Carolina, a police officer must have reasonable suspicion that you have violated a traffic offense before initiating blue lights to pull you over.
Typically, police officers are looking for moving violations, equipment violations, expired registrations, or unusual driving actions. An unusual driving action can be weaving within a lane or moving at a slower speed than usual.
If you do see the blue lights, begin to look for a safe place to pull over and then engage your turn signal. Once the blue lights are turned on, you are being graded for possible impairment. Officers are looking at an attempt to flee, response time to the blue lights, swerving, a sudden stop, or striking a curb or any other object in the roadway or highway. It’s vital that you respond reasonably and in a reasonable amount of time to an officer’s blue lights.
Once you are safely stopped, take a deep breath. Try to relax. Do not throw anything out of the window, switch seats, or throw anything in your car’s back seat. Do not try to stuff gum or breath mints into your mouth.
Speaking with the officer
Wait for the officer to approach your vehicle. Do not under any circumstance exit your vehicle unless the officer asks you to do so.
Have your driver’s license ready for the officer. If the officer asks for your registration, politely provide him or her with it. Always be polite and cooperative with the officer.
During the stop, you do not have admit to anything. You do have the right to remain silent.
If the officer asks you if you have had anything to drink, use discretion. If you’ve only had one or two traditional beers and are over 100 pounds, you most likely will not blow over a .08. Remember, it’s legal to consume a drink and drive. However, if you feel that you have consumed more than enough, do not share this with the officer.
Semantics is critical in these types of stops. Do not use language such as “I had some shots” or “I had double whiskey and coke.” Instead, characterize it as having a “beer” or a “drink.” It may not take much to get your breath alcohol level up if you have had high gravity beers, wine or liquor drinks. A good rule of thumb is that one liquor drink equals two beers. One glass of wine equals two beers. It’s also to critical to note who served you the alcohol. Was it from a bar where they’re consistent with pours, or did you mix the drink yourself? It makes a difference.
After you have been asked if you were drinking, the next question will usually be to provide a portable breath sample for the officer. This is not mandatory. The number registered is inadmissible unless the driver is under the age of 21.
At this point, you might want to ask the officer, “Am I free to leave?” This is important to ask because the officer needs to have reasonable suspicion that a crime is being committed. Depending upon what they know at this point, there may not be enough to continue a DWI investigation.
The Portable Breath Test is supposed to be given after the standard field sobriety tests. This is done to corroborate whether other evidence by demonstrating that the suspicion of alcohol impairment is consistent with the officer’s observation of the subject’s mental or physical impairment.
If you are in this situation, take note of the following:
Did the officer use their own portable breath test?
Did the officer put a new straw in the machine?
Did the officer ask you when your last drink was consumed?
Did the officer get two samples waiting 5 minutes between each?
The officer must get two samples within a .02 reading to be admissible as a positive reading. They must wait five minutes between the two samples.
Field Sobriety Tests
Next, you may be asked to do field sobriety tests. Remember, these do not have to be performed by an individual. It is not mandatory to take field sobriety tests.
Field sobriety tests are used to prove they have probable cause to arrest an individual for driving while impaired. There is a standard battery of three tests that are usually given. These include the horizontal gaze nystagmus test, walk and turn test and, the one-leg stand test.
You should be asked if you have any physical disabilities that would not enable you to perform field tests. However, this is not generally the case.
Many people are only asked, “Can you walk a straight line?” Typically individuals are not asked about their eyes, back, knee, if they have ADD or any general health questions before performing field sobriety tests.
The Horizontal Gaze Nystagmus Test (HGN Test)
Nystagmus is defined as an involuntary eye movement. This field sobriety test is used to spot an involuntary jerking of the eyes. Alcohol is one of 38 things that can cause nystagmus.
There is a lot of operator error when it comes to this test. Frequently, individuals are given this test when they should have been medically disqualified as candidates for this test.
Some officers also fail to test whether you have equal pupil size, resting nystagmus, or equal tracking of their stimulus, usually a finger or pen. If the individual has suffered head trauma, it is possible to have gaze nystagmus due to a blow to the head from a steering wheel or even an airbag.
Often the nystagmus test is performed roadside, which presents many problems. If on the roadside, the individual may exhibit signs of nystagmus called optokinetic nystagmus from passing lights. For example, if you are sitting on a train and see telephone poles out the window as you are traveling, your eye will track towards the telephone poles.
Additionally, an individual may be facing the officer’s blue lights flashing or the flashing light bar that could cause nystagmus signs.
If placed in the situation of taking a horizontal gaze nystagmus test, provide the officer with any concussions or head trauma history.
The Walk and Turn Test
The walk and turn test is supposed to be given on a flat surface. Problems that can occur here are that an individual does not know how they are being graded. They are going to be advised of several tasks to do with oral directions being given by a police officer roadside or in a parking lot.
Usually, individuals are not asked if they have any questions after the instructions are given. The police officer does not perform the whole test when instructing you what to do. Many times individuals are not asked if they have exercised that day, if they are nervous, if they have ADD, or have any back, knee, or ankle injuries.
You typically are not wearing athletic wear when performing these tests. In the Wilmington area, it is not uncommon for someone to wear flip flops. Inappropriate footwear can work against an individual when performing this type of test.
One of the eight clues that the police officer looks for is if an individual stays in the instruction stage and secondly if they touch heel to toe each step. In inappropriate footwear like flip flops or sandals, it can be hard to hold your balance and touch heel to toe when walking.
You are allowed ½ inch of leeway when making those steps, but some agencies have officers who do not know that and wrongly write down clues.
The police officer is also looking for clues concerning an individual’s listening skills as they are conducting this test. Seeing how fast or slow you react to orders.
During this test, an individual is not to come off the line they are walking, so you have to be particularly steady when going down the line.
One problem with not having an actual line to walk and having to imagine a line is how wide is the line that we are imagining? Is it the size of my foot, or the size of a pencil?
Individuals are instructed to keep their hands by their side. This is not how you would usually walk a line because you would regularly use your arms to balance yourself. The officer will only allow six inches of leeway concerning the distance your arms are away from your body. This can be very subjective. I often watch the police body cameras so that we can make an objective determination of how you performed.
In this test, the officers are looking for four different clues. Suppose an individual has balance problems (inner ear, vertigo, diseases that affect balance, weak ankles). In that case, they need to let the officer know. Individuals with this type of problem should not perform these tests.
The police officer is looking for these four actions:
1 sways while balancing
2 uses arms for balance
4 putting foot down before they are instructed to put their foot down
During this test, an individual will have to hold their arms six inches from their sides, hold their leg in the air at six inches, and count until the officer tells them to put their foot down. Again, this test is supposed to be performed on a flat surface.
If the test is given roadside, it may be windy out, which can throw off anyone’s balance. Passing vehicles can cause an individual to be anxious and lose balance. As mentioned above, many times, people may not be wearing the proper footwear to perform successfully on this test.
If an individual is overweight, it can be hard for them to hold their foot up six inches from the ground as instructed by the officer.
Additional Sobriety Tests
We have shared information on the standard tests, but others can be administered. Two we will cover here are the ABC Test and the Romberg Test.
Suppose an individual cannot perform standard tests due to physical limitations. In that case, they can ask the officer to perform an ABC Test. However, if given the ABC Test, the officers generally will have you start at one letter and end at another, for instance, “Start at N and end at T.” You are not to sing your alphabet.
Another test is called the Romberg Test. In this test, a person is asked to tilt their head back and stand with their feet together, close their eyes, and estimate 30 seconds. The one problem is the officer doesn’t explain how he or she is are grading the test.
They do not instruct to stand as still as possible. Any movement and swaying can be testified as a potential impairment. The person also has to be right on the money on estimating thirty seconds. People generally don’t practice their 30 second time estimations in life, so why would anyone expect to nail this on a roadside under pressure?
Field Sobriety Conclusion
Individuals must make the decision for themselves about field sobriety tests. If they feel like they cannot perform a specific test, they need to explain to the officer why they cannot do it.
Suppose a person buckles under pressure to perform a specific sobriety test that they don’t think they can do because of a medical or mental ailment. In that case, they will be providing evidence against themselves.
Many individuals who have contacted the McGee Law Firm are two touchdowns down before performing standard field sobriety physical tests due to medical conditions. When asked why they performed the test, they responded that they were nervous and forgot to tell the officer about their health problems.
The officers do not care. We’ve seen the Walk and Turn Test give to someone with a wooden leg.
The Portable Breath Test
If arrested for DWI, an individual will be taken to either a police station or the detention center to provide a breath sample in the EC/IR Intoximeter Machine.
They will be read some rights regarding a breath test in North Carolina.
The first important part about these rights is that an individual is advised if they do not provide a breath or blood sample that the Department of Motor Vehicles will civilly revoke them for one year. Meaning, their driver’s license will be revoked for one year.
If one refuses to blow, the officer can get a warrant and take a blood sample. Most agencies, except for our local NC State Highway Patrol, would get a blood sample if an individual refused to provide a breath sample.
The answer to whether one should refuse or not depends on whether the agency would get a blood sample or not and do you drive for a living.
The second critical right individuals are advised of before taking the intoximeter test at the station, is their right to have a witness observe them during the breathalyzer test.
Those in this situation should always try and have someone come and witness to see whether they are impaired. The witness could make observations that could contradict law enforcement opinions.
Additionally, suppose the witness asks to be in the breathalyzer room, and they arrive on time but are denied access. In that case, that could be a reason for the suppression of a breath test result.
Once the rights are read to the defendant, they only have thirty minutes to get a witness to the breathalyzer location.
If one refuses to blow, blows over a .08 alcohol concentration, or are under 21 years of age and have any alcohol in your system, the Magistrate shall revoke their license for thirty days.
After the breathalyzer test, the individual is taken before a Magistrate who determines whether there was probable cause to arrest for DWI and he or she will set the Bond for the defendant.
People need to have someone sober come and get them so that they do not have their mugshot make the Wilmington Star-News and be duplicated across the internet. It’s also essential to get out and not have to wait for the next allowed time for a phone call.
After Leaving Jail
Once an individual is out of jail, they need to call or text the McGee Law Firm as soon as possible.
There are different ways a person can get driving within the thirty days of the civil revocation issued by the Magistrate.
A person should write down a detailed statement of the day or night events and provide all witnesses. If in an accident, they should take pictures of their car, the damage and note whether air bags deployed. Also, take photographs of injuries sustained.