Countermeasures at a DWI Stop

Is it a crime to drink and drive? No, of course not. But some people out there – like MADD people – seem to want to bring back Alcohol Prohibition; step by step. So, do you know how to best handle a DWI stop in Minnesota?

Of course, “don’t drink and drive,” should prevent a problem. So can counting your drinks to stay below the limit. But let’s dig deeper than the obvious.

Drunk driving was the crime

Once upon a time, drunk driving was the crime. But then in the 1970s, the legislature created “per se” impaired driving laws. Per se is Latin for “the thing itself.”

And Minnesota Courts hold evidence of impairment and non-impairment to be irrelevant under per se limit laws. That’s why you don’t hear the term drunk driving much anymore. Impairment is irrelevant to the per se limit law. But why would driving be a crime when not impaired?

A per se drunk driving law makes driving with an arbitrary alcohol-level the crime. And for those laws, it doesn’t matter that the driver was sober, not drunk; not impaired at all.

Ok. So the laws are unfair – punishing the innocent and their families for driving unimpaired. There it is.

So how can you protect yourself and your family from this unfair law at a DWI stop?

How can you protect your rights at a DWI stop?

What can you do to protect your rights at a DWI stop? There are a few different approaches and answers to the question. So let’s narrow our hypothetical, and provide one.

We know that most people at a DWI stop have:

• alcohol concentration under 0.15,
• no priors, and
• no impaired-driving conduct.

So let’s start with all of those assumptions, and assume Minnesota laws.

And given that most drivers travel faster than Minnesota’s posted speed limits; let’s assume a police officer stops the driver for speeding late one Friday or Saturday.

The police squad car take-down lights are visible in the rearview mirror. Now what?

Each incremental intrusion upon your liberty

Every incremental intrusion upon your time and freedom of movement by police, must be incrementally justified by facts, observed or admitted, to justify that incremental escalation of intrusion upon you.

If not, a judge should rule the intrusion (stop, prolonged detention, Field Testing, PBT breath machine, arrest, search for breath, urine, or blood) illegal, and suppress that tainted evidence. So, naturally you don’t want to provide evidence to a police officer that could give them justification for that next, incremental intrusion upon your right to be on your way.

DWI Stop: Police Approaches Vehicle

We train police to observe all of your actions, and note any that could support suspicion of impairment. And they ignore the rest. At this phase, these include:

• odor of alcohol
• eyes, “bloodshot, watery”
• fumbled for driver’s license, insurance card
• admitted drinking, coming from a bar, party

What are some potentially effective countermeasures to a DWI stop, then? If the window is open about an inch – that is enough to pass through the drivers license and insurance card; but not enough to expose the odor of alcohol. (You could initially refuse to lower the window. This forces the officer command you to do so; making it difficult for them to argue you did so voluntarily.)

When speaking to the police officer through the almost closed window, the driver can avoid eye contact. This prevents the officer from being able to observe their boilerplate “bloodshot watery eyes” they imagine come only from drinking. (Living people have “bloodshot watery eyes.”)

It’s a good idea to have the drivers license and insurance card ready in hand immediately after stopping. Do so well before the police officer walks up to the vehicle to request them. They are in your hands already, which are in plain sight on the steering wheel. (Police ask for your license and proof of insurance, then try to distract you with more questions while you get them – in order to cause you to fumble with them). See:

Driving Without Insurance.

Be careful about what you say

If police ask “have you been drinking tonight?” at a DWI stop, you need not answer or answer responsively. Lying, however, is a bad idea, for many reasons; so don’t. And it’s also a bad idea to admit facts the officer can use to build “probable cause;” to ask you out of the car, or for arrest.

So where does that leave you? Silence, or change the subject. They can’t make you talk, or lie.

If a speeding stop, the officer should just write you a ticket and send you on your way; unless you give her reasonable suspicion to justify asking you to get out of your vehicle.

“Step out of the car:” Now what?

If you use the car for support when getting out, they will use that. So don’t. They will ask you to walk behind your car, in front of theirs. Their many squad car lights will be on full brightness.

They will ask you to perform field exercises they like to call “Field Sobriety Tests.” These are not scientifically valid, though the government claims otherwise. Sober, trained police officers “fail” these “tests.” So how will you pass them? And who is your judge? The police officer, with an agenda!

What to do at a DWI stop, then?

Never perform field exercises (never, ever)

Do not do “Field Sobriety Tests!” The NHTSA Standardized FSTs are:

• Nine step walk and turn
• One leg stand
• Horizontal Gaze Nystagmus (follow pen with eyes only, not moving head)

Can police require you to perform standardized Field Sobriety Tests? No. Police cannot legally require you to do any of these. And it would be a foolish mistake to willingly do any of them. These roadside field exercises give police another justification to prolong the traffic stop. If you listen carefully, police don’t say “you must do these field sobriety test exercises.”

Instead they say, “I’m going to ask you to perform some tests and if you do well, you can go home. Sound good?” But a better response is, “no thanks officer, but I will blow into the PBT right now if you like.”

If your five-year old repeats the same request over and over again, nagging, you still say “no.” So when a police officer repeats a request for “Field sobriety Tests,” you don’t need to make excuses, just keep saying “no thanks,” as long as it takes.

“Why won’t you do them?”

“A lawyer told me that I don’t need to, and I shouldn’t do them. So, I won’t be doing them. But I’ll be happy to blow into the PBT, sir.” (No excuses.)

Note that when police investigate suspected DUI marijuana after a traffic stop, they will employ additional tricks and traps to make a case. Learn more about those:

DUI Marijuana Minnesota

Marijuana DUI: Myth vs. Science

Preliminary Breath Test (PBT)

Minnesota statutes authorize police officers to ask a driver to blow into a PBT machine – a portable breath-alcohol machine, as a screening test for arrest probable cause. But the law requires certain preconditions, where there is a basis to suspect DWI or selected other alcohol-related offenses.

Don’t worry about whether those preconditions exist at the side-of-the-road DWI stop. Your lawyer can deal with that later.

A PBT machine report of 0.08 or more can give police probable cause to arrest for DWI. And so can “refusal” to perform a PBT. Refusing a PBT is not a crime. But, refusing a PBT would provide police with probable cause to arrest. See:

Underage Consumption: Can Minor Refuse Breath Test?

“Should I refuse the PBT at a DWI Stop?”

A logical person knowing that, might decide to refuse the PBT; if that person was sure the PBT would report well over .08, for example .16 or more. So that person might have nothing to lose by refusing – since they would be arrested either way.

But compare that to a person who believes they could get a PBT report of less than 0.08 (for example, the person who knows they really did have “one beer.”) That person would be foolish to refuse it, since it could result in no arrest and no charges.

Two different breath machines

Many drivers become confused with the second breath test request by police. They refuse the second request, “because I already blew!”

But be aware that the little PBT machine at the DWI stop; is not the same as the big, evidentiary breath test machine at the police station.

And after a DWI arrest, police ask for a testing sample again, even though you already blew into a PBT. The PBT report is not evidence in a criminal DWI trial, because it’s too unreliable and inaccurate.

If arrested at a DWI stop; then what?

Every step along in the chain of events, brings the driver closer to arrest (unless the PBT is under 0.08). But if the PBT reads high or is refused; arrest follows with handcuffs and the back of the squad car. More on arrest law:

Unlawful Arrest: Legal Remedies.

Then normally the arresting officer will wait for backup or a tow truck. And then drive to the police station. Talking is not a good idea, including while in the squad car. The interior squad camera is recording it all.

At or near the police station (or hospital for a blood draw); police may read “the Minnesota Implied Consent Advisory” which informs the driver of certain legal rights.

The most important is your right to consult a lawyer before chemical testing.

Pre-test Right to Legal Counsel

It is always, always, always – best to call a lawyer first!

The law requires police to help you do so before a breath test. If they fail to help you call a lawyer, the chemical test could be suppressed from evidence.

So, always, make every effort to call a lawyer – even if in the squad car after a DWI stop. Tell the officer you want to call a lawyer. They usually record this part – a good thing.

Exception: If police get a search warrant for a blood or urine sample; they might not assist you in calling a lawyer first. But when in doubt, always ask to call a lawyer, anyway. Your lawyer will thank you later for preserving your rights.

Right to an Additional Test

The “Implied Consent Advisory” read by the cop does not mention other important rights. It neglects to mention your Constitutional right to exculpatory evidence. And your statutory right to an “Additional Test,” reflects your Constitutional right

You have the legal right in Minnesota to a Second Test, after the you provide the sample requested by police. (But not if you “refuse” to provide a testing sample.)

So, the arrested person should always request an “Additional Test,” after giving a sample for police testing.

If you do make that request, the law requires police to help, by giving you a phone to use. You can use the phone to call whoever you need to arrange for an additional test.

Prior Record

A driver prior record can change things in some ways. In general, a driver with a “prior alcohol-related incident” on their driver’s license record may face more severe penalties including enhanced criminal charges, mandatory minimum sentencing, longer license loss periods, potential for “no use – driving or not” (B-Card) restrictions on license (often on the third incident), extended Ignition Interlock Device restricted-license periods, vehicle forfeiture, and time in jail after arrest pending a bail hearing. Related: Detox Release in Minneapolis.

The most severe enhancement of a garden variety “driving with an alcohol concentration of 0.08 or more” charge is Minnesota’s felony DWI law. See:

Winning Felony DWI Cases in Minnesota.

All of these serve to amplify the importance of good legal advice, early and often.

Question? Call DWI Lawyer Thomas Gallagher, 612 333-1500

Stay safe out there. You are welcome to call with questions.

More: DWI Stop

Defending DUI Cases in Minnesota

Know Your Rights: Protect Yourself from the Police

Avoiding Traffic Stops

DWI FAQ Minnesota laws