Part I of this series on how to behave if you get pulled over for suspicion of DUI can be found here. Now on to Part II the interaction itself.
The police who pulled you over for suspicion of drunk driving is NOT your friend. This sounds obvious, but I am consistently surprised by how many people start chatting with the officer who approaches the car. When an officer pulls you over and suspects you have been drinking, he is going to approach the car and strike up a conversation with you. How's your night? Where are you coming from? Do you know why I pulled you over? He is not making idle conversation. From the moment he approaches your car, he is building his case against you. Can he smell alcohol, even if faint? Are your eyes bloodshot or dilated? Are your eyelids droopy? Do you slur your words? When answering questions about where you have been, and whether and what you have been drinking ? are you evasive? Nervous? Do you shift in your seat? Do you stumble over your words? There is a very good chance your every move and word is being recorded either by a device on the officer's person or in his vehicle.
You will not talk/cry/flirt/charm your way out of the arrest. See Rule #1 for why! When an officer comes to your window, he probably already suspects you for DUI. He is now just looking for more evidence that he can show a jury to absolutely bury you. So what do you do? Sit there like a mute? Well ? yes, sort of:
- First, be polite. Because you were wise and had your license and registration ready to over to the officer as soon as he approached, you have already helped put him at ease.
- Second, do not answer ANY questions related to alcohol consumption. It's fine to say, "I'm headed home" or something innocuous to that effect, but do not get into any specific details about where you were ("at dinner" is perfectly sufficient), or what you consumed/ate, etc. If you are feeling ill or are tired, you should certainly share that information only. Did I mention, DO NOT answer a single question about alcohol?
- If the officer questions you about your alcohol consumption, you should decline to answer the questions and ask if you are free to leave. Of course you're not free to leave ? don't get excited over the possibility he may say yes! You are asking to establish a later argument that the officer "seized" you in the context of the Fourth Amendment. I promised this guide was aimed at non-lawyers, so I won't bore you with legalese, but the context governing what you are asked depends on whether a reasonable person would feel they were free to leave or not. The more intrusive and pointed the questioning, the more information the officer must have beforehand to justify that level of intrusion. By asking whether you are free to leave, you are establishing that this is a "custody" situation and you are not free to leave, thus requiring the officer to later provide enough evidence to justify his seizure (if you are still confused, trust me on this one and just ask the question!)
- NEVER agree to allow the officer to search your vehicle. Again, be polite and tell the officer you would be happy to allow him to search your vehicle if he allows your attorney to be present (sensing a pattern?).
The reasoning behind much of this advice is to help you protect constitutional rights you probably don't even know you have, but a Judge will later find you waived if you don't aggressively enforce them. So, whether you have anything damning in your vehicle or not, whether you only had a glass of wine at dinner, consenting to a search and answering questions regarding alcohol consumption will hurt you more often than it will help.
So, you have been politely uncooperative with the officer. Now what?