10) Ignore Police Emergency Lights, or react significantly late to them.
One of the best clues of intoxication that police rely on is your reaction time. If you are late to notice the emergency lights which are considerably bright, including the “take down” spotlight the officers immediately aim at you driver-side mirror, then be prepared for officers to argue at trial that you were so intoxicated, it took you considerable time to even know you were getting pulled over. There are always ways to attack this, such as heavy traffic, lighted freeways, and stealth police cars that do not have overhead lights.
9) Pull over in an unsafe area such as a bridge, or in a lane of travel.
This shows your not clearly thinking. Whether due to nerves or alcohol is for a jury to decide. As soon as you see the overhead lights behind you, tap your brakes to acknowledge, and turn on your right blinker. Then find the closest, and safest spot to pull the vehicle over.
8 ) Retrieve your Driver’s License, but not your proof of insurance.
Officers often point to this as the first time the suspect fails a “divided attention” task. You hear this term throughout DWI trials, that someone is intoxicated because they have great difficulty doing two things at once. This is a presumption the State makes, but it is not scientifically founded, and there is no baseline to compare how suspect would do in more favorable and relaxed settings. You must be certain you listen carefully to all the officers’ statements, questions, and commands.
7) Fumble with your documents.
Poor fine motor coordination is a State argument that you have lost the normal use of your physical faculties, and are therefore legally intoxicated. When retrieving your license and insurance, go slow and deliberate, don’t rush so as to drop them or throw them. The best policy is to have these items already out for when the officer arrives at your window. The good news is that if you fumble these items inside the vehicle, it’s rarely visible on camera, and therefore, jurors often dismiss this fact because they can’t see it occur.
6) “Pour” yourself out of your vehicle.
This is referring to holding on to your car door or vehicle as you exit. This is the first time you are on camera, and as the cliché goes, you don’t get a second chance with a jury to make a first impression. If you need support to get out of your vehicle, then expect to hear the police say your physical faculties are impaired. Another caveat that relates to this is leaning on your vehicle while outside or holding on to your vehicle as you walk to the rear of it. Stand up straight, maintain your balance, and don’t give up this missive. Documented injuries are the exception.
5) Mumble.
Expect police to have a field day with this. They will ask you to constantly repeat, tell you that they don’t understand anything your saying, and document this in their report as “slurred” speech. The problem with the State relying on this is that you have never spoken to this police officer before and there is no way for them to know how you normally talk. Also, nerves are big contributor to a person’s speech. Often, if I am nervous, my voice can quiver or I may not be as articulate. Do your best to speak clearly and at a reasonable volume.
4) Believe if you’re 100% candid, then the officer will let you go or give you a ride home.
It just isn’t going to happen. No matter how charming you think you are, or good looking, or important, if the police think you might be intoxicated, they are going to investigate, and then, likely arrest you. Often, I see people ask the officer to please drive them home, that they live right around the corner. People, it is never going to work. And if it has worked for you, I would love to hear the story and tell you that you are one in a million. Saying this is equal to a confession of DWI. You have just admitted that you need someone to take you home because you cannot safely get there.
3) Perform the Standardized Field Sobriety Tests.
These tests are designed to make you fail. You do not know what the police are looking for in these tests. There are clues, and if the police see the minimal amount of the clues, then you fail. The police don’t tell you what clues they are looking for, and it is not a high number to fail. Also, these should be called the Standardized Field Sobriety Pop Quizzes. You don’t get to practice, study, or retake. You get one shot at the Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand, and if you show 4/6 clues, 2/8 clues, and 2/4 clues respectively, you’re going for a ride. If you pass two of the three, you may still be arrested. There is no scientific formula in these tests that suggest they are accurate or when the decision point is made to arrest, it’s a “totality” of the circumstances according to the officer’s subjective belief. The Walk and Turn and One Leg Stand are also called “divided attention” tests. They are not simple, rather complicated, and difficult to complete even for the most athletic of us. In the half dozen SFST courses I have completed, I have seen one person pass all 3 on the first try and nobody had anything to drink.
Another thing, do not tell the officer, “I couldn’t do these sober”. Just trust me on that.
2) Consent to the Breath or Blood Test.
Don’t presume either of these is accurate. There is a difference between a valid test and an accurate test. We have a couple Intoxylizer 5000 breath test machines here at the office. This is the same machine used in Texas for evidentiary breath testing, and I can tell you that it has significant issues. If you do take one of these tests, the best plan for beating your DWI will be to go to trial and hiring an expert to testify about the problems with these machines. If you refuse breath or blood, that is less information the State has to go at you with, and you are one step closer to getting your DWI case dismissed or reduced to another charge due to lack of evidence.
1) Forget that everything is being videotaped.
Officers have the ability to manually turn on their cameras while driving, or to allow them to come on once they activate their emergency lights. Once the camera is rolling it continues until you arrive at the sally port down at the jail. EVERYTHING is recorded by the video, including audio. If you have a passenger in your vehicle, anything the passenger says is being recorded. Be mindful of this at all times. The video is the only objective piece of evidence in a DWI case. It has been my experience that jurors rely more on the video than anything else at trial.