DUI/DWI – Handling a Traffic Stop
You’ve been out on the town, or you’re on your
way home from a friend’s house when you see the blue lights in your rearview
mirror. You know that you’ve had three
beers, or was it four? In any event,
there is a chance that you may be impaired or intoxicated. The decisions that you make in the next few
minutes could have a huge impact on your future. Over the past couple of decades there has been
considerable advocacy against drinking and driving. Groups such as MADD and SADD have raised the
public consciousness. Moreover, police
have gotten aggressive, setting up sobriety checkpoints and taken additional
measures to take drunk drivers off of the roads. While we can certainly understand the public
benefit to maintaining safety on the highways, there are significant personal
consequences that arise out of a DUI traffic stop. Our sole goal is to assist our clients in an
informative, nonjudgmental way, to minimize the harmful effects that can follow
once the mistake has been made.
The scope of this article deals only with the
actual traffic stop and does not address issues concerning what to do after you
have been arrested for a DUI or DWI offense. Read our article: DUI/DWI
– Will I Lose My Driver’s License?
The Preliminary Breath Test
Under Maryland’s Implied Consent law, when a
driver is lawfully stopped and the officer who has reasonable grounds to
believe that the person has been driving or attempting to drive while under the
influence of alcohol, or while impaired by alcohol, the officer may request
that the driver submit to a preliminary breath test (PBT) administered by the
officer, using a device approved by the State Toxicologist. The officer can use the results of a
preliminary breath test as a guide to decide whether an arrest may be
made. The results may not be used in any
court action. The refusal to take a
preliminary breath test does not affect the driver’s legal rights and has no
bearing on the driver’s obligation to take a subsequent chemical test. Drivers should generally decline to submit to
a PBT. Agreeing to take a PBT generally
just provides the officer with additional probable cause to support an arrest.
Should I submit to a Chemical Test for Intoxication?
If the officer suspects that a driver has
driven or attempted to drive a motor vehicle on any highway, or private
property that is used by the public in general, and that driver is detained on
suspicion of driving or attempting to drive while under the influence of
alcohol or while impaired by drugs and/or alcohol, the officer may request that
they be tested for intoxication. There
is no requirement to consent to the test, unless the driver has been involved
in an accident resulting in the death or life-threatening injury to another
Refusing to take a breath test may be a
prudent strategy depending on the circumstances, and depending on your level of
intoxication, but generally is not likely to help your cause. In some instances, where the officer has no
other evidence of impairment, however, refusing to take a test for intoxication
will benefit your cause. There are two
problems here: (1) the driver often does not know whether the officer has
evidence of impairment or not; and (2) refusal to take the test will result in
the suspension of your license, even if it saves you from a potential DUI.
One smart strategy, where a driver has
consumed alcohol and is potentially impaired, is not to engage in any
conversation with the officer. When the
officer approaches the vehicle, the driver opens the window just a crack to
hand the officer their license. An even
better strategy is to simply hold the license up, so that the officer can see
the license through a closed window. Or simply open the window a tiny bit to
hand them through. Refusing to open your
window makes it harder for the police officer to establish that they reasonably
believed that you were driving or attempting to drive while intoxicated. Some people will make a note explaining that
they do not wish to open their window and ask that any citations be placed
under the windshield wiper. They will
place the note and their license/registration in the bag, so they are clearly
visible and place it in the window for the officer to see.
If you are stopped, an officer will usually engage
in conversation upon approaching your car window. You are not obligated to speak to the
officer. By rolling down your window and
speaking to the officer, you are potentially providing evidence of intoxication
that the officer would not otherwise be able to obtain. In almost every DUI case that we see, the
officer reports that they smelled the odor of an alcoholic beverage on the
person’s breath, that the eyes were glassy and bloodshot and that the driver
slurred their speech. You can, by taking
the steps indicated in this article, prevent the officer from obtaining any of
this evidence in your case. If you are
stopped in a situation where there is no chance that you are impaired or
intoxicated, and there are no illegal substances in your vehicle, we do not
recommend taking these steps as you will only raise the officer’s level of
suspicion and it is likely that the officer will look for additional reasons to
prolong the stop and have you exit the vehicle.
prudent strategy, in addition to holding up your license and registration is to
make a note indicating that you do not wish to speak to the officer and that
you wish to speak with your attorney immediately. You may want to make a sign with the
refuse to make a statement or answer any questions.
wish to speak with my attorney immediately.
do not consent to be questioned without my attorney present.
will not speak with you until my attorney is present.
I am taken into custody, I will not answer any questions.
decline to participate in any field sobriety tests.
refuse to consent to any search of my car or my person.
I am not under arrest, I wish to leave right now.
I am under arrest, please advise me so at this time.
wish to speak with my attorney prior to giving any breath or blood sample.
Consequences of Refusal or Failure of Test
If the person consents to the test, and fails
the test, they can face a suspension of their license. Refusal to take the test can also result in a
license suspension of 120 days. Taking
the test and failing it, however, can result in a suspension of 45-90
days. The time periods stated are for
first-time offenders only. Your license
could be suspended beyond these periods if you have any prior offenses on your
record. For a nonresident driver,
Maryland can suspend the person’s privilege to drive in Maryland, and their
home state may take additional action to suspend their driver’s license.
Refusing a breath test does not guarantee you
will not be convicted of driving while impaired or driving under the
influence. The state may argue in a
criminal case that you refused the test because you knew that you were
Roadside Field Sobriety Tests
In addition to the PBT, the officer may
request that you participate in one or more roadside field sobriety tests. You are under no obligation to participate in
these tests and we recommend generally that you do not do so. There is generally no benefit to doing the
roadside sobriety tests and by agreeing to do the tests, you help the state
build its case against you. The tests
are designed to give the police probable cause to arrest you. If you refuse to participate, you are likely
to be arrested, but you will minimize the evidence that the state can use
against you in court. The chance that
you will convince an officer that you are not impaired, by successfully
performing the tests, is minimal. You
should simply tell the officer, politely, that you do not wish to participate.
There are three tests which are commonly used
Horizontal Gaze Nystagmus Test. In this
test, the officer holds an object, such as a pen and tells the driver to follow
the object as he moves it from side to side.
The officer is looking for the onset of nystagmus, which is a twitching
of the eyeball, prior to a 45 degree angle, and watching for the ability of the
driver to follow the stimulus back and forth.
Nystagmus, however, is a common condition and may be indicative of a
medical condition other than impairment by alcohol.
Walk and Turn. In this test, the officer
directs the driver to take nine steps along a line, heel-to-toe, turn around
and take nine steps back. The officer
observes your balance, whether you stop during the test and whether you step
off the line.
One Leg Stand. The driver is told to
stand still, with the arms at their side and raise one leg six inches off the
ground and count out loud until the officer directs you to stop. The officer is checking to se if you can keep
your balance, if you raise your arms, hop, sway, or put your foot down.
If You are Arrested
If the officer arrests a person after finding
probable cause, the officer will confiscate the driver’s license and issue an
Order of Suspension with a temporary license that is valid for 45 days. Although you obtain a temporary license, it
is illegal to drive within twelve hours after an arrest for driving while
impaired or driving while under the influence of alcohol.
The Order of Suspension will contain a hearing
request form. It is important to
complete this and send it in, with the required fee, within ten (10) days of
the arrest. You must include a check for
$125 payable to the Maryland State Treasurer.
A hearing allows you to challenge the suspension or in the alternative
request that a restricted license be issued that allows you to drive to and
from work, and for medical treatment, during the course of the suspension.
Contact an attorney immediately. The sooner that you contact an attorney, the
more time the attorney has to investigate and prepare your case for trial.
Do not try to make your case with the
officer. Generally, pleading your case
with an officer who has just, or is about to, arrest you is not going to be
successful and may result in you, unwittingly, providing evidence that can be
used by the state. Just cooperate with
the officer, be as nice as possible without volunteering any information, and
sit patiently until you are released or can reach your lawyer.
Make a written summary concerning everything
that you can remember about the traffic stop.
You should probably do this before reading the Order of Suspension,
which will have the officer’s account of what happened. This summary will be helpful later on, when
you go to court and when you appear for a hearing on your license
Get into an alcohol education program prior to
going to court. You want to start
building a case for mitigation as soon as possible, in the event that you plead
guilty, or are found guilty in court.
This will help you get a better sentence, and may allow you to stay out
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