Republished with permission – by ATTORNEY MATTHEW NORWOOD – originally published March 14, 2020 – Need help with a DUI matter? Contact Attorney Norwood at (810) 235-4639
Being charged with drunk driving, whether it’s being impaired, operating while intoxicated (OWI) or driving under the influence (DUI), is a horrible experience to go through. People feel anxiety, fear, shame, and confusion. I will attempt to help clear up some of these issues with postings over the next few months. These posts are in no way encouraging drunk driving, but just providing a guide to individuals who are not criminals or bad people, but just someone who made a mistake.
In the first blog post, I discussed the reasons for a police officer to pull you over and how to avoid that unpleasant experience. For my second post I’ll discuss what to do if you are pulled over. This topic makes me very popular at parties. I always encourage individuals to take an Uber if they are at all in doubt if they’re impaired. Better safe than sorry. However, people make mistakes, and when you’re sitting across from me at my desk and I am discussing your case, you’ll have better options if you follow these rules.
First, if you’re driving and you’re getting pulled over by a police officer, then you’d better pull over. If you think that it is a good idea to drive another mile to get home or somewhere safe, it’s not. The officer is going to think something is up. They’ll think you’re trying to hide a gun or some narcotics, or they’ll think you’re trying to find somewhere to bail out of the car and make a run for it.
My advice is to pull over as soon as it’s safe and pull over to the right as far as possible. This is to keep the officer out of oncoming traffic. You may ask, why should I care about that? Because you want the officer to be as relaxed as possible. Remember, they have guns and can shoot you.
Next, when you stop your car, put it in park and take your foot off the brake. If you have your foot on the brake and car not in park, they’ll think that you’re getting ready to take off as soon as the officer gets out of the car. Once your car is in park, don’t make a bunch of movements. If you start digging for your insurance and registration in the glove compartment, or start getting your driver’s license out of your pocket or purse, the officer is going to think that you’re potentially hiding something or getting a weapon. I would have your hands on the steering wheel at 10 and 2, just like your driver’s education teacher would have appreciated. It’s wouldn’t hurt to have your fingers straight instead of gripping the steering wheel like you’re holding on for dear life. Further, let them first get to your window and then slowly take your left hand off the steering wheel and roll down your window to hear what the officer has to say.
Now, this is where it gets important. If you’re impaired, drunk or high, you’re most likely going to jail. Deal with it. It will suck, but it’ll be less than 24 hours. If you’re lucky and in the City of Fenton, the Fenton police will bring you McDonalds in the morning. If in Grand Blanc, on rare occasions the officer may even let you call for a ride instead of going to the Genesee County Jail, but only after they arrest you and book you. If you’re going to the Genesee County Jail where all the other departments like Burton, Flint and Davison take you, you’ll be served monkey brain sandwiches. I hear they taste worse than the name suggests.
If you’re going to jail anyway then why does the rest of this blog post matter? Because you will be giving me so much more to help you in your defense. Most people think they can talk their way out of getting arrested and this is where most of my clients screw up. By talking and doing the roadside tests, also called the drunk Olympics, you’re giving the police all the evidence they need to convict you. You’re lending your finger for tying a pretty bow on a present for the prosecutor from the police. Remember, it’s not illegal to drink and drive. It is illegal to drink alcohol or do drugs and have it impair your ability to drive or to drive with a blood-alcohol level above a .08.
If you are an elderly lady that never drinks alcohol and has two glasses of wine and some champagne at a wedding, you may not be above a .08 blood alcohol level (BAC). But the alcohol may make her feel buzzed and remember that driving while buzzed is impaired driving. On the contrary, some big guy that can drink a 6 pack of Bud Light and not feel buzzed or impaired but has a blood alcohol level above a .08 and operates his car, is operating while intoxicated. Either way, you’re in trouble but you can make your situation better if you follow these rules.
The officer will ask you for your driver’s license. You must give it to them when asked. This is also true for the vehicle’s insurance and registration. On a side note, I would never keep expired insurance and registration information in my glove compartment. As you look for it in the glove compartment, and you are nervous, you most likely will be fumbling around through papers frantically looking for the correct small piece of paper. Your police report will read that you fumbled through your papers and handed the officer expired proof and therefore must be impaired. It’s easier just to keep the up to date documents in a plastic sleeve, where it can easily be found.
The officer will ask you where are you coming from. If you say a bar or a party, then congratulations, you’re giving them evidence against you. Instead, you can just give the officer a general area you’re coming from, like Grand Blanc or Fenton. You don’t need to be a jerk, but you can politely decline to answer the question all together because the constitution does give you a right against self-incrimination. You can say, “Officer, I politely decline to discuss my activities.”
The next question from the officer is going to be, how much have you had to drink tonight? Your answer of a couple or 1 or 2 will be used against you to prove probable cause to arrest you. I would suggest you politely decline to answer that question, also.
Around this time, you’re going to be asked to step out of your car. You need to do this. If you don’t, you’ll be dragged out of your car and you’ll be charged with a felony for resisting a police officer. One way or another, you’re coming out of your car.
Many of our local police departments like Grand Blanc, Fenton and Flint have police cars equipped with video cameras and microphones. Remember that your statements, actions and mistakes will all be eternally memorialized and ready to prove probable cause of your impairment to a judge or jury. However, if you are not stumbling around and not noticeably slurring your words, then it can bolster our claim that there was not enough probable cause to arrest you.
While standing outside of your car, the officer will ask you to do a couple of tests. They will say they just want to make sure that you’re okay to drive. What they really mean is they want to prove probable cause that you’re impaired and arrest you. These are legally referred to as field sobriety tests but I call them drunk Olympics.
Do us a favor and politely decline to take them. You’re not going to pass them. You may think you did, but they’ll write in the report that you failed. Since there is no penalty and your license will not be taken away for declining them, you may as well just tell the officer, “I politely decline.” It’s that simple. You’re exercising your constitutional right and can not be punished for it.
Three of these tests are standard and have been endorsed by the National Highway Traffic Safety Administration. These have been specifically taught to every officer who does drunk driving enforcement. These tests are required to be instructed the same way every time. If not instructed correctly, their validity is questionable. The State of Michigan has even passed a law that requires substantial compliance in how the officer instructs these tests.
The first test they ask you to do is the Horizontal Gaze Nystagmus. In short, this test involves checking your eyeballs as you attempt to focus on an object going back and forth. The test is technically looking for involuntary jerking or twitches in your eye. These twitches indicate alcohol levels above the legal limit. This test is done on the side of the road where cars are speeding by you and flashing patrol lights are around you. There are many causes of nystagmus (involuntary eye twitches) besides alcohol, like caffeine, lack of sleep and many others. This test also gives the officer a chance to get close to smell your breath.
The next two field sobriety tests I can’t pass even when dead sober. For the walk and turn test, the officer instructs you to walk 9 steps heel to toe one way and 9 steps heel to toe back. But they instruct you on this test while you’re in a ballerina pose and then expect you to follow an imaginary line, do a very specific type of turn, and then walk back all while keeping your hands by your side. This is against all natural human instincts.
This is done on the side of the road that is probably uneven and possibly gravel. If you have balance issues, problems with your legs and knees or are wearing the wrong footwear, all while you’re very nervous, good luck. This is why I would politely decline these tests.
The final standardized field sobriety test is the one-legged stand. Basically, this test is having you raise the leg of your choice at least 6 inches off the ground for at least 30 seconds. But wait, you can’t raise your arms for balance and must count in their oh so special way. Not the normal 1, 2, 3 or even one thousand, two thousand, three thousand. Nope, you must count one thousand one, one thousand two, one thousand three and so on to one thousand thirty.
They claim that they are checking if you can follow directions and have divided attention. Never mind that you’re on the side of the road, possibly on uneven ground and wearing less than ideal footwear. Try doing it sober right now and see how you do. Passing these strange unfamiliar tests with one try is like hitting a home run the first time a baseball is ever pitched to you.
There are other tests that could be thrown in also. You could be asked to recite the alphabet, but they usually ask you to start with one letter like k and stop at another letter like t. They want to see if you can remember where to start and stop as you try not to skip, jumble any letters while you’re nervous. The numbers test is the same as letters. They could ask you to touch the tip of your nose or lean your head back and guess when 30 seconds have passed. These tests have no scientific value and are worthless, so why not decline to take them?
Finally, the officer will ask you to blow into a handheld device on the side of the road. This is called a preliminary breath test (PBT). I strongly suggest you refuse this test, too. If you do refuse this test, you will receive the equivalent of a parking ticket. Refusing the PBT on the side of the road is only a $100 fine and will not report to the secretary of state and therefore will have no impact on your driver’s license. Note: if you’re a truck driver and hauling freight, refusing a PBT is a misdemeanor, but only if you’re hauling freight.
All this test is going to do is confirm that you’re above the legal limit. If you’re below the legal limit, you will most likely be also at the station or jail when they have you take the real breath test called a Datamaster. If you’re below there, they will have problems charging you.
As I stated before, you’re going to be arrested for drunk driving and going to jail. Either before you get to the jail or at the jail, the officers will ask you to take another test. They can ask you to take a breath test, blood test, or urine test. It’s their choice, but it usually is a breath or blood test. I suggest you always take this requested test. Remember this is different than the handheld breath test on the side of the road.
In Michigan when the state gives you a driver’s license, it’s implied that you’ll consent to an alcohol test by blood, breath or urine if the police have probable cause to believe you’re over the limit. If you refuse this blood, breath or urine test, then you’ll face losing your driving privileges in Michigan for a year and 6 points on your driving record. Again, this is different than the roadside PBT. Further, they will still prosecute you for drunk driving because they will most likely get a search warrant for your blood from a judge. Note: if you have a previous impaired or OWI (drunk driving) conviction within the last 7 years, I would refuse this test, also. This only applies to individuals with previous convictions. You will most likely lose your license anyway, so you may at least give me more to work with.
-Don’t admit to drinking or coming from the bar.
-Politely refuse all tests on the side of the road, including the handheld breath test.
-Take the test for blood, breath or urine at the station, jail or hospital.
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