It’s a busy time in Western NC, as well as around the nation, with tourism and brewery opportunities combined with holidays and vacations. While, to those that have been in the unfortunate situation of being pulled over when just trying to make it home after a few alcoholic beverages, it seems all too easy to get a DWI/DUI, there are actually some surprisingly simple steps one can take to avoid a driving under the influence infraction. A driver’s license and the opportunities that come with it are not a right, but a privilege, and should be treated as such.
The first and wisest way to avoid a DWI/DUI is to not drink and drive. Or at least not to drink enough to put one’s blood alcohol level over 0.08% and drive. However, all individuals’ bodies process alcohol in a different way, physically and depending on the body at that time; therefore, how much it may take to get someone over 0.08% blood alcohol concentration (“BAC”) is pretty much unknown to anyone at any specific time. So, yes, not drinking and driving is the safest, most socially responsible way to avoid the hassle of getting pulled over and the potentially life changing issue of a DWI/DUI conviction.
However, there are several common sense steps individuals can take to decrease their chances (1) of getting pulled over, in general and especially when one may have consumed alcohol, and (2) then having to go through a field sobriety test and breathalyzer or blood test, moving towards a DWI/DUI charge and conviction.
First, don’t provide law enforcement a reason to pull you over. Police need an infraction or reasonable suspicion that a violation is taking place to pull you over at all. Now, if you are so inebriated you can’t drive straight and are a danger on others on the road, then you certainly should not get behind the wheel and drive at all. There is no magic trick to not getting pulled over if you cannot control your vehicle and are a danger to those around you.
But, you can control other items for which police can pull you over and ask further questions. One of the most common reasons for DWI/DUI stops I’ve seen in court are expired registrations. If you have an expired registration then you are inviting a cop to pull you over at any time, and during late night and higher times of DWI/DUI suspicion a cop will be happy to pull one over with such a problem, to investigate, when it could lead to greater charges. Similarly, if you have a headlight or taillight out, do not drive your car when you have had something to drink. For that matter if your car has other problems or items that draw attention to it from law enforcement don’t drink and drive that vehicle. Finally, decrease any other reasons that may draw attention to you, such as overly loud music.
Don’t speed (at least excessively)! These may seem like simple things no one would do when in such a situation, but one of these first three items are almost always the cause I’ve seen for DWIs/DUIs charges, resulting in convictions. Don’t invite the cop to pull you over, to then ask you questions and try to smell your breath. Also realize that cops are more often looking to catch drunk drivers at specific times and locations (obviously late night at the end of the week and weekends, as well as locations of high partying or drinking, such as lakes or bars) and, therefore, your behavior and/or vehicle in those situations may be analyzed in more detail by law enforcement than at other times.
Now, once you’ve been pulled over for an infraction or reasonable suspicion of violating a traffic law, the police officer will still need to establish reasonable suspicion that you are drunk while driving (unless the reason for pulling one over was unsafe driving in a manner that created an automatic suspicion of drinking and driving). The most common law enforcement statement supporting this next step on the ladder of reasonable suspicion is “I smelled alcohol.” That’s it, that’s all they need (it is the same for other drugs, such as marijuana, as well). Also, does red wine change the color of your teeth? So, be prepared or take efforts to cover or change your breath before you drive after a glass of wine or beer at a friend’s house on Friday afternoon. Simple options are gum or Scope in your car. Scope or another alcohol based breath cleanser may even provide you with an additional defense to any breathalyzer or blood test failures. A more complex solution is a toothbrush. Be aware that any observation that may lead a cop to think you may be under the influence while driving will bring about additional questions or lead to tests to confirm those suspicions.
If you are pulled over, before the officer comes to your window, think about what information you want to share and how. Answering the police officers questions in certain ways can also create the reasonable suspicion he or she needs to perform additional tests and potentially arrest you for a DWI/DUI. For example, admitting you have had drinks or came from a party. Sharing information that decreases the likelihood you have been drinking prior and doesn’t create additional questions is wisest. When answering a police officer’s questions it is best not to lie, but you also do not have to voluntarily produce information incriminating yourself. Share truths you know, but not too much of the truth that will create suspicion or guilt. If you start to lie you may get caught up in your own web of deception. You can simply choose not to answer questions or answer in whatever way you feel deflects attention from yourself and the situation. Use manners when talking with law enforcement, but don’t feel an obligation to “overshare” any details. Simply admitting you had “a drink” or a few could give the officer all the information he needs to then administer a field sobriety and/or breathalyzer test. Simply refusing to answer any questions and requesting an attorney is the best response if you fear providing the police officer with any self-incriminating information. Additionally, do not give consent to search anything (car, person, etc.).
If you take it, you will MOST LIKELY FAIL A FIELD SOBRIETY TEST! It is not a test designed to be passed and there is no automatic way to pass it or correct answers. It is a subjective test, based upon the officer’s opinion of your performance and it is almost impossible for even a completely sober person to pass such tests. You do not have to take a field sobriety test, and while the refusal to do so may provide the prosecution with an argument that you were drinking and driving, it is not actually any true evidence of such a claim. You do not need a reason to refuse to take a field sobriety test, you can simple tell the officer you do not wish to take such a test (something I always advise). But, as an alternative, if you have a reason that your performance on such a test would be substandard, then you may share it with the officer in response to your denial, if you wish. Some examples may be lack of sleep, physical injury, previous physical exertion and therefore tiredness. By having a sensible reason to refuse a field sobriety test you may bolster your defense and decrease the prosecutions reliance on such evidence as proof of DWI/DUI at trial.
If the officer claims to have reasonable suspicion that you have a BAC over 0.08% while driving, then he or she will ask you to take a breathalyzer test. You do not have to take the breathalyzer test with the police officer at the car. If you haven’t had anything to drink, then by all means take the breathalyzer test, get the stop over with, and back on your way (unless you are the unfortunate individual who somehow has a brewer’s yeast infection in his gut and his body is producing alcohol while breaking down normal foods: http://www.npr.org/blogs/thesalt/2013/09/17/223345977/auto-brewery-syndrome-apparently-you-can-make-beer-in-your-gut.) Otherwise, just inform the officer you will take the test at the police station with an attorney or other witness present. This extra time may allow your body to process what is in its system and potentially decrease the BAC results. Although, it may be important to realize that if you were drinking heavily somewhat close in temporal proximity to being pulled over, then more time may actually increase your BAC results on a later test (although they will almost always do another test at the station so you might as well delay the inevitable).
If you refuse to take the breathaylzer at the stop location, this will provide the police officer with a reason to arrest you and charge you with a DWI/DUI, but they will not yet have the evidence required for a conviction. They will then attempt to administer a breathaylzer and/or chemical blood test at the police station. You have the right to have an attorney or witness present at this test. You can attempt to refuse such a test at the police station, but there are more serious penalties (such as loss of driver’s license for at least one year) if you continue to refuse a test at this point in the process. Such refusal can be used as an argument you were drinking and driving under NC’s implied consent law, and there is also rumor that law enforcement may attempt and be able to force such a chemical blood test at a medical facility.
These tips and information contained herein is not for the purposes of promoting people to intentionally drink and drive, or get out of a situation where someone is a danger to others on the road (in all likelihood, it will not help you get out of such situations), but is meant to provide information about your rights, the process of DWI/DUI infractions, and how to manage yourself and the information/responses you provide in order to avoid hassles of being pulled over or worse. The information in here does not guarantee to get anyone out of a DWI/DUI charge or conviction and is not meant to promote drinking and driving in any way.
Look, it can be rather simple – law enforcement has to have a reason to pull you over, then they have to have reasonable suspicion you were drunk while driving, then they have to take efforts to prove their suspicions and have the evidence to support them. First, avoid giving them a reason to be pulled over. Second, avoid giving them any reasons that you had consumed alcohol before driving. Finally, deny any tests at the traffic stop if you believe you may fail them (especially and always field sobriety), and emphasize your non-consent to search and request for an attorney. How you wish to deal with the chemical blood test or breathalyzer test requests at the police station is up to you, but under NC’s “implied consent” law you may lose your license for a longer period if you continue to refuse such tests than if you submit, the DA and law enforcement can argue such refusal is evidence of guilt, and they may force such a test in the end, although that may then provide a defense attorney with an argument to prevent such evidence from coming to light via a Motion to Suppress for violation of due process consent rights.
If you have been charged with a DWI/DUI in Western NC, or other misdemeanor or traffic infraction or violation, including marijuana possession, it is recommended you consult with an attorney about your rights and defense.