- What should I say?
- Do I have to take the “field sobriety tests?”
- Do I have to take a portable breath test (PBT)?
- Does the officer have to read me my rights?
- Do I have to take a breath test at the police station?
- What happens during a DUI stop?
- How Will My Case Proceed?
- Penalty Chart of a DUI
- Will I Lose My License?
- Deferred Prosecution
An officer must have what is referred to as “reasonable suspicion” to believe that you have violated some law in order to make a traffic stop. Random stops, stops based on “a hunch”, and roadblocks are not legal in Washington.
According to the National Highway Traffic Safety Administration (NHTSA), the following is a list of symptoms, and the probability that a driver at night is legally drunk:
- Turning with a wide radius 65%
- Straddling center or lane marker 65%
- Appearing to be drunk (e.g. slouching in the seat, gesturing erratically or obscenely, eye fixation, tightly gripping the steering wheel, face close to the windshield, drinking in the vehicle, head protruding from the vehicle) 60%
- Weaving 60%
- Driving on other than designated roadway 55%
- Swerving 50%
- Slow speed (More than 10MPH below speed limit) 50%
- Stopping (without cause) in traffic lane 50%
- Following too closely 50%
- Drifting 50%
- Tires on center or lane marker 45%
- Braking erratically 45%
- Driving into opposing or crossing traffic 45%
- Signaling inconsistent with driving actions 40%
- Slow response to traffic signals 40%
- Stopping inappropriately (other than in traffic lane) 35%
- Turning abruptly or illegally 35%
- Accelerating or decelerating rapidly 30%
- Headlights off 30%
However, the officer does not have to observe any bad driving to pull you over. A burned out license plate light or headlight is sufficient legal justification to stop your car.
During the stopping sequence, the officer will continue to observe your driving for anything unusual: attempting to flee, responding slowly or failing to respond to the stop command, swerving abruptly, stopping suddenly or striking the curb when pulling over.
When you are pulled over, you should immediately retrieve your driver's license, registration and proof of insurance before the officer approaches your window and asks for these documents. Roll your window down. If the officer witnesses you fumbling for your paperwork, or having difficulty with the window (due to nervousness or unfamiliarity with the car) he will undoubtedly attribute these actions to intoxication rather than stress. Avoid this possibility by having everything ready. Also, do not take off your seat belt until after you first speak with the officer.
Understand that the officer's goal in every DUI stop is to gather evidence. He will be using his senses of sight, hearing and smell to collect evidence against you, and will do very little to gather or record evidence that will help you.
The officer is looking for:
- Red, watery, glassy and/or bloodshot eyes
- Flushed face
- Soiled clothing
- Fumbling fingers
- Alcohol containers
- Disheveled or unbuttoned clothes
- Drugs or drug paraphernalia
- Bumps or Scratches
The officer is listening for:
- Slurred or thick-tongued speech
- Inconsistent and/or slow responses
- Admissions of alcohol consumption or intoxication
- Abusive language
- Unusual statements
The officer is sniffing for:
- Alcoholic beverages
- “Cover up” odors such as breath sprays
- Chewing gum or smoke
- Unusual odors
Remember, always be courteous towards the officer. Never argue or debate with him. You will inevitably lose, and it will be used against you in a court later. Most importantly, never lie about anything. In other words, if you have been drinking, don't deny it. Doing so can damage your credibility later in court. If the truth hurts, it is far better to politely decline to answer questions and ask to speak to a lawyer.
If the officer suspects that you are impaired, you will be asked to get out of your car. At this point the officer will be paying close attention to your coordination during the exit, which will, in the officer's mind, provide evidence of your intoxication. Specifically, the officer will be observing:
- If you cannot follow instructions
- If you cannot open the door easily
- If you leave the ignition on
- If you leave the car in gear
- If you “stumble” getting out of the car
- If you are swaying or unstable on your feet
- If you use the door for support while exiting
- If you lean against the vehicle
- If you keep your hands on the vehicle for balance
After you have exited your car, the officer will instruct you to perform a series of so-called “field sobriety tests” including all, or a combination of, the following:
- Reciting the alphabet
- Walking a straight line in a heel-to-toe fashion
- Standing on one foot for approximately 30 seconds
- Finger counting
- Closing your eyes, leaning your head back and touching the tip of your index finger to the tip of your nose
- Examining your eyes to determine if there is any “jerkiness” by having you follow a pen or finger
- In addition to these “tests,” most officers use a device known as a preliminary or portable breath test (PBT). This type of breath testing device cannot be used in your trial, so will not fulfill your obligation to take a breath test at the police station pursuant to the implied consent law. If you take the test and flunk it, however, you will be arrested.
If I am stopped by a police officer and he asks me if I've been drinking, what should I say?
You are not required to answer potentially incriminating questions. A polite “I would like to speak with a lawyer before I answer questions” is a good reply. On the other hand, if the truth is that you consumed two beers over the past three hours, that kind of admission will not hurt you and may explain the odor of alcohol on your breath.
The most important thing is never lie about anything! It will only damage your credibility when you go to court. If you feel the officer's questions are becoming overbearing or accusatory, or his tone of voice or behavior becomes intimidating, ask to speak to a lawyer, and do not make any further statements until you have had the opportunity to do so.
Do I have to take the “field sobriety tests?”
Unlike blood and breath testing, submitting to “field sobriety tests” is strictly voluntary, although few police officers will tell you so. In many respects, these tests are designed for failure and of the several tests the officer might ask you to take, only three have been shown to have any relevance to proving legal intoxication. The alphabet test, the finger-to-nose test, the finger-count test and the standing balance (usually administered along with the finger-to-nose test) are scientifically proven to not correlate to legal intoxication.
According to the National Highway Traffic Safety Administration (NHTSA), the only tests that have been shown to have some relevance to establishing legal intoxication are the One Leg Stand, the Heel-to Toe and the Horizontal Gaze Nystagmus (HGN.
HGN – In this test the officer has you follow a penlight (or finger or pencil) and attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for a distinctive eye oscillation). If this occurs before 45 degrees, it theoretically indicates a blood alcohol concentration over .05%. The smoothness of the eye's tracking is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This test has been shown to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset, and make what amounts to a medical diagnosis that is best left to neurologists and ophthalmologists. Even under laboratory conditions, this test has only been established to be accurate in predicting a blood alcohol content above .10%, 77% of the time.
One Leg Stand - In this test you will be asked to stand on one foot for approximately 30 seconds, while the officer looks for four things:
- Do you sway while balancing?
- Do you use your arms to balance?
- Do you hop?
- Do you put your foot down?
According to NHTSA if you are unable to satisfactorily perform this test by doing two or more of the above, there is a 65% probability that you have a blood alcohol concentration of .10% or more.
Heel-to-Toe - In this test the officer is required to find a visible line. You will be asked to stand on this line in a heel-to-toe position while receiving instructions. The officer will have you walk on this line for nine steps, heel to toe, turn in a specified manner, and walk nine steps back. The officer will be looking for eight things:
- Can you balance during the instruction phase?
- Do you start the test too soon?
- Do you stop while walking?
- Do you touch heel-to-toe each step?
- Do you step off of the line?
- Do you use your arms for balance?
- Do you lose your balance on the turn, or do you turn incorrectly?
- Do you take the wrong number of steps?
An additional test that is frequently requested is a preliminary or portable breath test (PBT). That test is discussed elsewhere in this section of the web site
A driver who refuses to take the “field sobriety tests” forces the officer to make the decision to arrest based upon whatever evidence the officer has obtained prior to the point the tests were refused. The reality is officers have usually made up their mind to arrest before they give the FSTs; the tests are simply additional evidence to use against you in court. While an arrest may be avoided if the tests are taken and successfully completed, the tests are so subjective (what appears to be “swaying” to one officer may not be to another) that the best action may well be to politely decline until you have had the opportunity to talk to a lawyer.
There are two caveats. One is that refusing the tests will definitely heighten the officer's suspicion and may result in an immediate arrest. Second, a prosecutor may be allowed to argue that your refusal evidences a consciousness of guilt. Regardless, if you have been drinking, submitting to “field sobriety tests” is a momentous decision that will likely affect your case adversely.
Do I have to take a portable breath test (PBT)?
A PBT is a hand held breath-testing device that is carried by most police officers in their patrol car. It is given at roadside along with other “field sobriety tests” for the stated purpose of assisting the officer in deciding whether or not to make an arrest. Occasionally, the officer will use the results to exclude alcohol intoxication where the officer suspects drugs. The results of the PBT are not admissible in trial, but, if presented properly by the prosecutor, it may be used in certain preliminary hearings held to establish whether or not the officer had legal cause to arrest.
Submitting to the PBT is strictly voluntary, although the driver is rarely informed of that. Refusal to submit to the test will usually result in an arrest for DUI. But the fact of a refusal is not admissible at trial, and you will not lose your license or suffer any other sanctions for refusing.
Accordingly, there is a critical difference between the PBT and the “official” breath test that will be requested after arrest at the police station, known as the DataMaster. Do not confuse the two tests! You do not have to submit to the PBT on the street. But if you refuse to take the test on the DataMaster at the police station you will face at least a one-year license revocation.
Some people think that because they took a breath test on the street that they don't need to take another one at the police station because the difference is not adequately explained to them. Don't make the same mistake! If arrested for DUI, ask to speak to a lawyer immediately.
Does the officer have to read me my rights? What if he/she doesn't? Do I have the right to talk to a lawyer?
Almost everyone is familiar with the “Miranda Rights” that are read to a person who has been arrested. But when those rights must be read depends upon the facts and circumstances of each case. Originally, the Miranda rule was intended to insure that citizens were aware of their rights before being questioned by the police. But the application of the rule, and the consequences for the police violating it, has been expanded and further defined by statutes, court rules and subsequent court decisions.
Generally speaking, the officer must read you your rights when you are arrested. If the officer fails to do so, the prosecution cannot use any statements you make in response to questions, no matter how important the information is to the prosecutor's case. An exception can occur if, at your trial, you testify to facts different from what you told the officer. Then the prosecutor may be able to ask the officer what you said on the night of your arrest.
In Washington, the rule has been expanded from the original Miranda rule, which simply provided that a suspect has the right to remain silent and not answer questions until talking with a lawyer. As a result of a court rule adopted by the Washington State Supreme Court, an arrested person has the right to talk to an attorney for any purpose, not just to find out whether or not to answer questions. This is particularly important in DUI cases, because it means an arrested person can talk to an attorney to find out whether or not to take a breath test, as well as other things he or she should or should not do while in custody, or after release.
Failure to advise a person of the Miranda rights typically does not result in dismissal of the case. The remedy is suppression or exclusion of evidence obtained after the violation of the suspect's rights has occurred up to the point in time that the officer complies with the rule by advising the person of the Miranda rights.
It is a fact of life that most people do waive their rights and agree to talk to the officer. That is usually based on a mistaken belief that being cooperative will help their case. In questioning a suspect, a police officer is doing his or her job and looking for evidence that will incriminate the suspect. Innocent statements can be taken out of context, or be misinterpreted in such a manner that they can be devastating to an otherwise defensible case.
Since you have the absolute right to decline police questioning, your silence cannot be used against you in court as showing some consciousness of guilt, nor can the fact that you ask to speak to a lawyer.
Do I have to take a breath test at the police station?
You do have the right to refuse to take the official breath test, but the consequences can be severe, and you can, and probably will, still be prosecuted for DUI. In Washington, there are three official sanctions:
- Your driver's license can be suspended for a minimum of one year, or substantially longer if you have prior DUI convictions, or alcohol related administrative license suspensions.
- The fact of refusal can be introduced into evidence as “consciousness of guilt.” In other words, the prosecutor will claim that you refused because you knew you would fail the test.
- A test refusal will increase the mandatory minimum sentence that the judge must impose if you are found guilty.
If you refuse the test, the Department of Licensing (DOL) will revoke your license for at least one year. Prior DUIs can increase the revocation to two years. While an Occupational License may be available after 90 days (one year if a second administrative action), an Ignition Interlock Device will be required and you will be required to carry high risk insurance for three years following reinstatement of your permanent license.
What happens during a DUI stop?
You are entitled to a hearing before DOL revokes your license, but only if you request it by way of a hearing request form provided by the officer within 20 days of the date of arrest, and pay $200, which can be waived if you are indigent. If you did not receive the form, or if you lose it, go to a DOL licensing station and request a hearing request form. You may download the hearing request form at the following link: Hearing Request Form. You may also call Cowan Kirk, and we will provide you with one, without obligation.
Refusals increase the mandatory minimum sentence that must be imposed in the event of a conviction. In fact, the courts treat a test refusal the same as if the test result was over a .15 alcohol concentration! The fine will increase, the jail time will increase, and the additional license suspension resulting from a conviction will increase.
The DOL's license revocation will stand if you are unsuccessful in the administrative hearing regardless of the outcome of the criminal prosecution. Even if you are found not guilty, you will still lose your license for refusing the test!
It is usually easier to deal with a breath test in trial result than to successfully contest the revocation, so in most circumstances it is advisable to take the test. However, you should always call a lawyer if you are arrested for DUI.