The Drunk Driving Traffic Stop and Investigation

If you are stopped by a police officer who suspects that you have engaged in drunk driving, you can anticipate that the police are going to ask you questions and investigate your possible intoxication. This article provides an overview of what might happen in a typical drunk driving traffic stop.

How to Answer an Officer's Questions

When the police pull a person over, an officer will often ask, "Do you know why I stopped you?" You do not have to volunteer any information to the police. Unless the reason is obvious (e.g., you were going 85 mph with a 55 mph speed limit), the best answer to that question is usually "No." The officer will explain why he stopped you.

If the reason you were stopped is not obvious to you, you may end up confessing to traffic offenses that had nothing to do with why the officer stopped you. At the same time, if the reason is obvious you may look dishonest when you say that you don't know why you were stopped.

Often, the police will also ask, "How much have you had to drink?" If you have been drinking, you may choose to ask a question of the officer, rather than answering, such as, "Are you having problems with drunk drivers around here?" or even, "Why did you pull me over." You may also make a statement, such as, "I really need to get home."

But don't assume that the officer is stupid. If he asks you the same question again don't try to again change the subject. The officer is looking for is evidence that your blood alcohol may be over the legal limit. If you believe that the truth will make the officer suspect that you are drunk, you may refuse to answer.

If you admit to consuming alcohol, a statement to the effect of, "I had a glass of wine with dinner," is probably not enough evidence of intoxication unless you are showing other signs of impairment. "I had a couple of beers at a party," may be enough. An answer such as, "I drank a six pack, but that was hours ago," will frequently result in the administration of roadside sobriety tests.

If you believe that your blood alcohol may be over the legal limit and the officer is persistent, you can invoke your right to remain silent or your right to counsel. However, few jurisdictions require that the police give you access to counsel prior to your receiving a breath test, and the police may require that you take sobriety and breath tests even if you refuse to answer questions.

What Happens During The Investigation

Typically, a driver who is suspected of being impaired is required to take roadside sobriety tests, sometimes called "field sobriety tests." These tests may include balance tests (such as bending over or balancing on one foot, often with your eyes closed), reciting the alphabet, counting tests (usually involving counting backwards), and coordination tests (such as walking a straight line, or touching your ring finger to your thumb). In most cases, three or four roadside sobriety tests are administered.

If you have any medical conditions that will interfere with your ability to perform roadside sobriety tests, you should tell the officer about those conditions before he administers the tests.

Often, drivers dispute the officer's conclusion that they failed some or all of these roadside tests. By the time the officer is administering these tests he has usually already concluded that you are impaired, and he is looking for any possible reason to fail you.

If the officer concludes from your performance on the tests that there is reason to believe that you are intoxicated, some states then allow the officer to administer a "preliminary breath test" (PBT), sometimes called a "preliminary alcohol screening test" (PAS), using a portable breathalyzer machine.

Subsequent to the roadside testing, if the officer believes you to be impaired, he will typically transport you to the police station where you will ordinarily be given a breath test on a standard breath testing device that will measure your blood alcohol level from a breath sample.

Can You Refuse To Take Roadside Sobriety Tests, Or A Preliminary Breath Test

In most jurisdictions you can refuse to take the roadside tests and preliminary breath test without facing any legal consequence for your refusal. However, you should be aware that your lack of cooperation will not necessarily stop the officer from arresting you.

Video Evidence in Drunk Driving Cases

With the introduction of video cameras on patrol cars and body cameras on police officers, a traffic stop from an impaired driving case will often be recorded on video.

A videotape that shows a drunken, combative driver, or a driver who can barely stand up on his own, is very convincing to a judge or jury, regardless of how a defendant appears in court.

It is very difficult to protest that the officer is misinterpreting the roadside sobriety tests when the jury can see the driver's performance, and perhaps even hear what the driver is saying.

Can You Be Charged If Your Blood Alcohol Is Below The Legal Limit

An impaired driving charge can potentially be brought even if your blood alcohol level is below the legal limit.

Zero Tolerance Rules for Minors

Many states make it illegal for a minor (any person below the legal drinking age) to have any significant blood alcohol content while driving a car.

The threshold is usually set around 0.02%, to allow for mechanical error and the use of medications or mouthwash, which may artificially inflate the BAC. If set at a lower BAC level, the defense may raise the standard of error for the breath testing device to challenge a very low blood alcohol measurement.

You May Be Impaired by a Small Amount of Alcohol

The key issue for prosecution is whether your consumption of alcohol materially impaired your ability to drive. Some people have a low tolerance level for alcohol, and show the effects of intoxication even when they are below the "legal limit."

Additionally, if you are taking certain medications, the effects of alcohol can be magnified. You can be charged with impaired driving based upon your actual impairment even if your blood alcohol level is below the legal limit.

You May Be Impaired from the Use of Drugs or Medication

Some prescription drugs have a material effect on your ability to drive. The warning label on your pill bottle may specifically warn you not to drive after taking your medication. If you ignore this warning, and your driving is impaired by the medication, you can be ticketed for driving while impaired - even though you never consumed alcohol. An officer may also suspect the use of a controlled substance.

The police will sometimes seek a court order for a drug test, particularly if they suspect illegal drug use as the cause of your impairment. However, whether the drugs you take are legal or not, if the net effect of the drugs and alcohol is to substantially impair your ability to drive, you can be charged with impaired driving.

When Can an Officer Arrest The Driver

The officer may arrest the driver when the officer concludes, based upon the totality of the evidence he has observed, that there is probable cause to believe that the driver has an unlawful blood alcohol content, or was driving while impaired.

This is a very subjective decision, and it is very difficult to argue that an officer made an illegal arrest, even if you disagree with the officer's conclusions.

When Can The Officer Confiscate Your Driver's License

Most states now allow the police to take the driver's license, upon arresting the driver for an impaired driving offense. The driver may be issued a temporary permit to use until he resolves the drunk driving charge.

Every police officer knows what these temporary permits mean, so any person driving with a temporary permit should take great care not to get pulled over again.

Some states allow an immediate administrative suspension of the driver's license, which can be appealed through the licensing agency.

When You I Get An Attorney

Most states do not require that the police allow you to have an attorney before you have submitted to alcohol testing, or have refused to be tested. Some states allow a consultation with an attorney upon being arrested, before an alcohol test is administered.

What Rights Must The Officer Read to an Impaired Driver

When an impaired driving suspect undergoes blood alcohol testing, the officer should read the driver's chemical test rights. If the officer intends to interrogate the driver after the driver is in custody, the officer should read the driver's Miranda rights.

Chemical Test Rights

When you are required to undergo testing of your blood alcohol level, an officer must inform you of your chemical test rights. The explanation will typically include a description of what happens to you if you refuse to take a chemical test, and of your right to obtain a blood or urine sample so you can conduct your own test.

If the police fail to inform you of the consequences of refusing to take a "chemical test," you may be able to challenge the suspension of your license, resulting from your refusal.

Miranda Rights

During an impaired driving investigation or after an arrest, an officer may advise the driver of his or her Miranda rights. However, in most cases there is no legal consequence if the officer fails to read you your Miranda rights.

If you are arrested, failure to read you your rights may prevent the police from using against you in court the statements you make after your arrest. However, your Miranda rights do not prevent the use of statements you made before you are arrested, most statements you voluntarily make without any prompting from the police, or the use of your alcohol test results.

What Happens if You Refuse a Chemical Test While in Custody

Once you have been arrested for an impaired driving offense you may be required to take a chemical test to determine your blood alcohol content.

Prior to testing, you should be informed of your chemical test rights which will typically include a description of the consequences of refusing a test. Consequences typically include serious driver's license sanctions, such as a suspension of your driving privileges.

Also, the police may seek a court order to obtain a blood sample from you. If a court issues a warrant authorizing a blood draw, you may be forcibly restrained while a sample is drawn. That usually will occur at a medical facility, but some states have trained police officers to take blood samples from impaired driving suspects.

What is a "Per Se" Impaired Driving Charge?

Most states allow conviction for drunk driving based solely upon a driver's blood alcohol content. This is called a per se offense. A per se offense can only be charged if your blood alcohol content is known. Conviction does not require any proof of intoxication beyond the driver's unlawful blood alcohol level.

Sometimes, you will be charged both two counts of "drunk driving" (DUI, DWI, or OUIL) - for example, you may be charged with one count of "DUI" and one count of "DUI per se." These alternatives allow the police to argue first that your driving was materially impaired by your alcohol use, and second, even if it was not, that you are guilty solely on the basis of your blood alcohol content. A few states allow conviction for both charges, but you will only be punished for one offense.

Can You Represent Yourself Against Drunk Driving Charges

Generally speaking, it is not a good idea to try to represent yourself against any criminal charges. Drunk driving may seem like a relatively minor offense, but it is in fact one of the more complicated criminal charges for prosecutors to bring.

There are many technical defenses to impaired driving that a criminal defense attorney may be able to identify and raise to assist you in avoiding conviction, negotiating a lesser charge, or in reducing the consequences of conviction.

Copyright © 2000 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 8, 2018.