The traffic stop

All statements made in this post are just my opinion based on my experience. I am not a lawyer. This is not legal advice. If you need legal advice contact a lawyer.

There are many reasons the police may contact you. The obvious one is if you break a traffic law such as speeding. Many people think, "As long as I don't speed and follow all the rules they'll never stop me."

The problem with that thinking is that there are many other reasons the police may contact you:

1. DUI checkpoints
2. If someone else hits you
3. If you hit someone else
4. If your car breaks down
5. etc.

In my case, I was already stopped because I pulled over to the side of the road to send a text. But no matter how they stop you, you know you're in hot water when you hear the question, "Have you had anything to drink tonight?"

I do have a couple friends who have told me they have talked their way out of being arrested after hearing this question. But my opinion is that when a police officer asks you this he has already decided to take you to jail based on smelling drinks on your breath, slurred speech, or red eyes. Everything he does from here on out is just to get more evidence against you.

So how do you answer the question? If you really haven't had anything to drink that night then say no. But if you really have had something to drink, saying no may cause problems for you for lying to the officer. At the DMV hearing evidence that you lied will be taken into consideration. When negotiating with the District Attorney the fact that you lied may hinder your request for a lesser sentence.

So you shouldn't say no in that case. But if you say yes that gives the officer a good reason to take you through the field sobriety tests (which, again, is just to get more evidence against you). So the only sensible answer you can give is to say, "I'd rather not answer any questions." You will surely go to jail now, but the only evidence against you will be smell, slurred speech, red eyes, and what he observed of your driving patterns. In my case I said yes, because I knew my speech was slurred and I thought I could convince him that I only had 2 drinks. I think most people think they can talk their way out of it, so they're honest enough to say yes, but are dishonest about how much they drank. You'll hear stories from people who say they talked their way out of it, but it didn't work for me.

After I said yes, the officer asked me to step out and go stand in front of his police car. Remember, this was a CHP officer so your experience may vary when dealing with other departments. The walk you take will be evidence against you too. He will say that you walked with an "unsteady gait." Next, the officer conducted an "interview" where he asked a bunch of questions called "pre field sobriety test (FST) questions." Remember that lying on any question may be used against you later. But the truth can be used against you too, here's how they plan to use those questions against you:

1. Are you sick or injured? If you say no then you can't say the FST's were invalid because you were injured.
2. Do you have any physical impairments? If no, now you can't say you were unable to do the tests correctly.
3. When did you last sleep? Now you can't say you were sleep deprived.
4. When did you last eat? What did you eat? Any answer to these question limits your ability to explain away the alcohol content test results.
5. Were you driving the vehicle? They'll ask you this even if you were the only one in the vehicle. It appears that many people get out of trouble at trial by saying "they didn't prove that I was the one driving" so the officer will ask this question and list all kinds of things on the report that can prove you were the one driving (seated in driver's seat with seat belt on, engine running, registered owner of the vehicle, etc.).
6. Where did you start driving? If at a bar, that doesn't help your case.
7. What have you been drinking? How much? This is where you'll feel the need to fib, which can cost you in the end.
8. What time did you stop drinking? Any answer to these question limits your ability to explain away the alcohol content test results.
9. Do you feel the effects of the drinks? If yes, then you are admitting to being under the influence of the drinks.
10. Have you taken any medicine or drugs? If no, you lose another explanation for how alcohol got into your system.
11. Do you feel the effects of the medicine? If no, now you can't claim the medicine affected your performance on the FST's.
12. Have you had surgery performed recently? If no, now you can't say you were unable to do the tests correctly.

As you can see, all of these questions are intended to gather evidence against you or take away potential defenses you might have in court. The key to negotiating with the District Attorney is to show them all the possible defenses that you have. When you limit your defenses you give up bargaining power. Therefore, I believe the best answer to any and all of these questions is to say "I'd rather not answer any questions."

Having finished the questions the officer will move on to the FST. In my case the first test attempted was the HGN test. This is the one where you follow an object with your eyes. However, the officer did not say "OK, we're going to do the tests now." Throughout the "interview" he was giving directions about where and how to stand. He simply continued these instructions to stand here, then stand there, put your feet here, put your arms there, look here, look there, stand there, put your feet like this, next thing I knew, I had completed the HGN test and was starting the Romberg Balance test even though I knew it was a bad idea to do any of the tests.

Which brings me to the field sobriety tests themselves. Again, they are only used to gather more evidence against you. If you fail, you fail. If you pass, it was "inconclusive." They don't need any of the tests to arrest you. They can arrest you only on your speech, smell, or any other indication that you are above .08% or under the influence. The best thing you can do for your defense is to say "I'd rather not do any tests." And yes, you will surely go to jail then, but I believe you'll be in a better position than if you had given them all the evidence they want.

The only questions that I think are worth answering are the ones about your identity. They can't release you from jail until they are sure who you are and don't have any warrants and are not in the U.S. illegally. So I recommend answering questions about your name, social security number, place of birth, etc. but nothing else.

Bottom line, if you are asked questions about drinking and you have been drinking, I think the best thing you can do is don't answer any questions and don't do any of the tests. Everything I said was truly used against me.