If you’re pulled over for a simple traffic violation, you may feel intimidated. If you’re pulled over after you’ve been drinking, that intimidation is often accompanied by a mix of emotions - especially if you don’t know your rights! The Commonwealth of Virginia is among the strictest states when it comes to drinking and driving. Although an officer doesn’t need much to charge you with DUI in Virginia, the charge must be supported by evidence for a conviction to follow it. This week’s blog demonstrates what to do (and not do) in order to leave the prosecution with as little evidence against you as possible.
In order to justify a traffic stop, the officer must have reasonable suspicion that you are in the process of committing a crime, you have committed a crime, or you are about to commit a crime. Most individuals arrested for DUI or DWI are originally pulled over for speeding, failure to fully stop at a stop sign, swerving, or some other type of erratic driving behavior (i.e. you have committed a crime). However, just because you drank before you drove, doesn’t mean you are guilty of DUI or DWI. Please visit our DUI & DWI page to understand the difference between driving under the influence and driving while intoxicated.
IMMEDIATELY AFTER THE STOP
Once you’ve been stopped, the officer may take a few minutes to note your license number/tags. If it’s dark outside, he will likely have a spotlight shining into your car. This makes your EVERY move visible.
1. Don’t move around frantically looking for your license/registration. Stay calm and as still as possible.
2. Take out your cell phone and turn on the video recorder. You have every right to record your interaction with a police officer.
3. Roll your window down all the way. Refusing to roll it down or only rolling it down halfway creates immediate suspicion and may demonstrate consciousness of guilt.
COMMUNICATING WITH THE OFFICER
1. Refer to the officer as “sir” or “mam” – be courteous.
2. When asked, supply your license, registration, and proof of insurance. Make sure you don’t accidentally hand the officer your credit card instead of your license. Though surprising to some, this mistake happens fairly often!
3. “Do you know why I pulled you over?” – If you know you were speeding, swerving, etc., tell the officer why. *Note: many officers jump to the conclusion that swerving and drunk driving are directly correlated. They're not! Kindly speak up and give the officer a reason for your ‘suspicious’ driving behavior. For example, you dropped your phone; you’re looking at directions, etc.
4. “Have you been drinking tonight?” – NEVER ADMIT TO DRINKING. This cannot be stressed enough. Even if you’ve only had one or two drinks, this CAN and WILL be used against you. If suspicious, the officer will attempt to pressure you into admitting that you’ve had a few drinks. Politely deny having consumed any alcohol prior to driving. The officer will tell you that he smells alcohol and ask you to explain why he smells alcohol if you haven’t been drinking. Politely tell him you are unsure. Deny, deny, deny! 5. “I smell alcohol”; “You have blood shot eyes”; “You have slurred speech” etc. – These are some common accusations the officer uses hoping to squeeze out an admission to consuming alcohol. It is important to understand that these are beliefs of the officer. An officer’s belief doesn’t prove a person's guilt.
ONCE YOU’RE ASKED TO STEP OUT OF YOUR CAR
1. If you’re suspected of being under the influence, you will be asked to “step out of the vehicle.” Agree to step out of your car, but don’t talk. The officer will likely pressure you again into admitting to drinking: “So you’re sure you haven’t had anything to drink tonight?” or “I know you’re lying to me because I can smell alcohol.” etc. Again, politely deny.
2. The officer will then introduce Standard Field Sobriety Tests (SFSTs). These tests are voluntary. It is very important to listen to the officer’s choice of wording. These are the most common ways the officer will present FSTs:
a) “I’m going to need you to perform a few tests for me, ok?”
b) “Would you mind performing a few tests for me?”
c) “You’ll just be doing a few tests to make sure you’re ok to drive.”
Notice the differences? In the first question, the officer is telling you that he needs you to complete some tests and asks if that’s ok. In the second, he is asking if you would be willing to complete some tests. In the third, he is telling you that you will be completing some tests. Field Sobriety Tests are completely voluntary, but the officer is not required to mention this. If the officer makes you feel forced to complete FSTs, your DUI attorney will use this as leverage in your case.
3. Preliminary Breath Test (PBT) will be next. Just like FSTs, the PBT IS COMPLETELY VOLUNTARY. The result of the PBT cannot be used against you in court, but can and will be used as probable cause to make your arrest. The officer will likely use one or a combination of the following phrases:
a) “This will just show me what your blood alcohol content (BAC) is and if you’re ok to drive.”
b) “You’re not required to take it, but I am required by law to offer it to you. Do you want to take it?”
c) “Would you like to take a PBT?”
Just like FSTs, you are not required by law to submit to a PBT. If the officer forces you to take the PBT, your DUI attorney should challenge the probable cause (your PBT result) used to make your arrest. If the officer ASKS you if you would be willing to submit to the PBT and you agree, the officer has sufficient probable cause to make the arrest.
SEARCHING YOU, YOUR PASSENGERS AND YOUR VEHICLE
Unlike homes, cars have fewer 4th Amendment protections. An officer only needs probable cause to search your vehicle, but that probable cause must be aimed at a specific area of your car. In other words, if the officer smells marijuana coming from the center console of your car, he may search that area, but he isn’t justified in searching your trunk. A good rule of thumb to go by is if the officer is asking for your permission to do something (i.e. search your trunk), he is not authorized to do so without consent. An officer is authorized to search your vehicle without your consent if….
1. You’re seen trying to hide something under your seat or dispose of something by throwing it out the window. Simply lowering your shoulder or reaching under the passenger seat is grounds for the officer to search.
2. If the officer has reasonable, articulable suspicion that you are carrying a weapon, you may be patted down (frisked). This doesn’t include searching for drugs or contraband. But, if such items are found during a weapon search, they may be confiscated and used as evidence against you.
3. If there are clearly visible illegal items in your car (for example, an open beer can or drug paraphernalia), the officer is authorized to open the car and seize the item(s). If he comes across more illegal items in the process, he may seize those as well.
4. You, any of your passengers, and your vehicle are subject to search after you’re arrested. Additionally, if you’re arrested and your car is towed, the officer is authorized to order a more thorough search of your entire vehicle.
1. Once pulled over, stay calm and still. Always be polite.
2. NEVER admit to drinking.
3. Provide an explanation for any erratic driving behavior.
4. Don’t consent to any Field Sobriety Tests (FSTs)
5. Don’t consent to the Preliminary Breath Test (PBT)
It is important to understand that even if you follow the guidelines above, you may still be arrested for DUI. Why? Because if an officer suspects that you have driven after consuming too much alcohol, he doesn’t need much to charge you. But, what is the officer left with if you follow the guidelines in this blog? A polite driver who stated that he hasn’t been drinking and has exercised his right to refuse FSTs and the PBT. That is a very limited set of facts for the prosecution to work with. Charged with DUI doesn’t mean you will be found guilty of DUI. This is why understanding your rights and hiring an attorney can be the difference between a conviction and a dismissal!
About the Author
Suzi Wolf, Paralegal
Ms. Wolf assists in the research and analysis involved in each case handled by Robinson Law, PLLC, and she is responsible for all “behind the scenes” work. Her primary duties range from accounting and drafting contracts to filing motions and assisting in trial preparations. Ms. Wolf is thrilled to take on her most recent project as the firm’s blogger and hopes to provide informative, enjoyable posts regarding common topics in criminal law.
If you need legal advice regarding a traffic or criminal matter, please contact Robinson Law, PLLC directly at (703) 542-4008 or MAR@VirginiaDefenseAttorney.com. This blog is not intended to serve as legal advice.