How To Deal With A DUI Stop - Part 3

You've Been Stopped, Now What?
Most states do require a driver to submit to a chemical test, or face severe penalties. However, the police officer must have at least "reasonable suspicion" that you are impaired by alcohol to force you to take one of the chemical tests. If you have made no admission to drinking and have performed no tests that he can claim you performed inadequately, his grounds for forcing the testing are limited to your driving and your demeanor. If your drinking has not been excessive, neither your driving nor your demeanor should support reasonable suspicion to demand a chemical BAC test. The only common defense for refusing to take a chemical test is that the officer did not have probable cause to require the test. Again, a burned-out headlight or a refusal to participate in the charade of a roadside sobriety test are not probable causes to require a chemical test.

If the officer persists in forcing you to take a chemical test, and the test results show that he was not justified in forcing you to take this test, you may wish to consider a lawsuit to recover damages. A request for punitive damages should also be initiated in the interest of deterring future enforcement excesses.

If you are not "drunk," it is usually advantageous to you to have the stop recorded on a video camera. Many police cars are equipped with video cameras for just this purpose. However, police officers will sometimes avoid turning the camera on if they think the resulting documentation will detract from the possibility of a conviction. Ask the officer if his car has a video camera and if he has it turned on. If he does not have the camera turned on and you believe it would be advantageous to your defense, ask him to turn it on, that you want the stop recorded. This sends a message that you are not afraid to have your mannerisms and demeanor judged by an impartial judge or jury. It's very difficult for a police officer to claim your "speech was slurred" or that you were "staggering" when you got out of the car when a video film shows a composed articulate defendant being interrogated on an unlit roadside by a uniformed, gun-toting agent of the law.

If you notice that the officer is intent on sticking a flashlight in your face or in your car, it is probably because the flashlight is equipped with an electronic alcohol sensor that detects the presence of alcohol. You do not have to accept this "probing." You can instruct the officer to keep the device away from your face and out of your vehicle. He is free to look into your vehicle, but only from the exterior, unless he requests to search your vehicle. NEVER voluntarily permit a search of your vehicle. To search your car, depending on the jurisdiction, an officer must have probable cause or at least reasonable suspicion, a suspicion he must be able to explain in terms of what he is looking for and why he believes he will find this specific illegal item in your vehicle. There is absolutely no good that can come to you by voluntarily allowing the police to search your vehicle.

Another pre-screening test that falls in and out of favor is called the nystagmus test. By shining a flashlight in the drivers eyes and instructing the driver to scan left and right the officer looks for a jerking eye motion that is sometimes an indication of intoxication. It takes training and experience on the part of the police officer to perform this test. In reality, jerky eye movement or not, the officer can say he performed the test, detected the telltale eye movement, and therefore felt justified in ordering the defendant to take a chemical test. Again, you do not have to take the nystagmus test and should refuse to do so. Just as with the other pre-screening tests, the only reason they are conducted is to justify requiring a chemical test and to build a case against the defendant.

Will your refusals to cooperate with the officer's requests for pre-screening tests irritate the officer? Yes, they probably will. But, keep in mind that if he asked you to take these tests he has already decided to find a way to justify requiring you to take a mandated chemical test. There is no good reason for you to assist him in this effort. Furthermore, if he senses a lawsuit in the making, if he falsely arrests you for drunk driving, he might just decide to find an easier target to fulfill his nightly quota.

Of equal importance, without the additional evidence that the pre-screening tests provide, or pretend to provide, the prosecution will find it very difficult to make a case against you, if your BAC is close to the legal limit, or below.

Despite all evidence to the contrary, if the officer decides a chemical test is justified you typically have three choices of test procedures: Breathalyzer, urine test, or blood test. Frequently, the police will use a Breathalyzer test for the initial screening. However, you are almost always guaranteed the option of taking one of the other two tests, at your request.

How To Deal With A DUI Stop - Part 4