Just Say, "NO" (To a Peace Officer"s Request For You to Perform Sobriety Tests)
As an attorney, Texas peace officer and a former State prosecutor, I learned early on that drivers accused of various offenses and almost always Driving While Intoxicated (DWI) say too much and are far too cooperative..
..
As you read the following article, take my advice to heart...
but remember, this is based off the law as it currently stands in Texas in 2008.
So you find yourself sitting on the side of a road with those bright LED red and blue lights flashing in your rear-view mirror...
your heart is racing ...
you are probably scared ...
and then you panic and remember that you had a few beers before leaving your friends place, or wherever you are coming from.
The officer walks to your window and the painfully bright takedown and spotlights are aimed in your driver's side mirror and that darn flashlight that he or she is wielding glances strong rays into your eyes, who knows if it was intentional, but we'll hope that it was not! The officer introduces himself/herself and then usually explains why you were stopped...
or, the officer may ask you that infamous question, "Do you know why you were stopped.
" At this point, you have a couple of options:1)Being honest and stating the reason that you believe you were stopped, or 2)Replying with a polite, "No, Sir/Ma'am".
Option 1 may be good because the officer will likely appreciate the fact that you are being honest and could give you a warning (that is what I did when I conducted traffic stops).
Or, Option 1 may be detrimental because the officer may not care and plan to write you a citation either way, in which case, you will have admitted to either the violation that was the reason for the officer's stop or to another violation ...
either way, you should know that almost assuredly your statement will be recorded by the device carried on the officer's person...
so, choose wisely.
Option 2 definitely is within your rights and being polite can never be used against you, especially, if the officer comes across as condescending and cocky, and you remain cool and calm.
This will always make you look good to a judge or jury.
Then, the hard question and basis of this article: "Sir, how much have you had to drink tonight?" or "Ma'am, I smell the odor of metabolized alcohol on your breath, step out of the car and let's discuss this further.
" (Or, any similar variation of this scenario.
) DO NOT refuse to get out of the car! Said another way, do what the officer asked and GET OUT OF THE VEHICLE...
but be aware that every move you make and every word you say will be recorded on a camera system that is installed in the officer's patrol car and via a microphone on his belt or in a pocket on his person.
This means, any excessive walking, stumbling, leaning, etc.
will be used by the officer to formulate probable cause to determine that you are intoxicated and may be arrested..
..
However, refusing to exit the vehicle may just result in you being removed by one or more officers...
Now that you are out of the vehicle, the officer starts asking you questions about what you have drank, when the last time you had something to drink was, what food you've eaten, whether you are injured, etc.
While all of this may seem to be friendly conversation, it is not...
this is designed to gather facts that may lead to your arrest and subsequent prosecution for Driving While Intoxicated (DWI)...
So do you answer these? NO! Think back to all those cop shows you've seen on TV ...
what is the first thing that cops say to people that are arrested...
"You have the right to remain silent..
..
" And that is not just to sound interesting and cool...
it is actually your right and it is provided in the United States and Texas Constitutions...
KNOW AND USE YOUR RIGHTS! The best thing you can do is to tell the officer that you are not going to answer any questions without first talking to an attorney.
Will you get a lawyer on the side of the road...
no.
Will you be allowed to call an attorney while on the side of the road...
no.
So, are you going to talk to the officer...
no.
The officer then may say something like, "Sir, I need to make sure you are okay to drive based off the information I have so far.
Please step over here and follow my instructions.
" Your response: No, Sir/Ma'am.
Officer: Sir, I want you to watch me and let me know that you understand what I am asking you to do...
You: Watch him/her, but do not do the tests.
Do not say that you understand, but DO NOT say that you do not understand.
Officer: Sir, if you do not do the test/task that I am showing you, I am going to have no choice but to arrest you for driving while intoxicated.
You: Okay...
or silent.
This process is likely to go back and forth for a while and when it stops, the officer may ask you to "put your hands behind your back" and advise, "You are under arrest for Driving while Intoxicated.
" You will be handcuffed and searched, then placed into the cramped backseat of a patrol car.
DO NOT SPEAK...
DO NOT START ASKING QUESTIONS...
especially if you are intoxicated...
your language will probably reflect the intoxication through slurred speech and mumbled words..
..
So, we are back to the original question: May I refuse to participate in field sobriety tests / Do I have to answer an officer's questions? The answer is no...
you NEVER have to answer questions as that is your constitutionally protected right to remain silent, and as the law is written today, in Texas and all other states to my knowledge, you do not have to take the field sobriety tests...
like the walk and turn, one leg stand, or horizontal gaze nystagmus.
In summary, most officers have usually made up their mind to arrest when they give the field sobriety tests, and your performance on the tests simply provide additional evidence that will later be used against you.
But that is not true for all officers and I am in no way suggesting that officers are corrupt or that all would arrest you for refusing..
..
Now, an officer will probably testify that the tests were offered to help determine whether you were under the influence and that he had no choice but to arrest you based off the other evidence-odor of alcohol, bloodshot, watery eyes, and any oddities observed in your walking/standing/speaking.
But, if this is all that the State has to prosecute you, there is a much greater chance that you will be found not guilty or that the case would be reduced or dismissed..
..
And remember, the original cause for the officer's stopping you need not be related to driving under the influence of alcohol or drugs, but it gives them the right to get close to you to observe you, smell your breath, etc, to begin building a DWI case investigation.
Many times, you will receive a warning so that this cannot be challenged in court...
but if you are given a citation, CHALLENGE IT...
if you win at this level, you may have eliminated the probable cause for the stop and thus any subsequently obtained evidence.
Routine detentions for equipment and registration compliance, such as a cracked windshield, inoperative taillight, headlights not turned on, and so forth, maneuvering and parking violations, and many other reasons have been held by the courts to constitute sufficient cause.
And in Texas, even if the officer testified that he or she stopped you as a pre-text for a DWI investigation, it is still a valid reason for the stop.
..
As you read the following article, take my advice to heart...
but remember, this is based off the law as it currently stands in Texas in 2008.
So you find yourself sitting on the side of a road with those bright LED red and blue lights flashing in your rear-view mirror...
your heart is racing ...
you are probably scared ...
and then you panic and remember that you had a few beers before leaving your friends place, or wherever you are coming from.
The officer walks to your window and the painfully bright takedown and spotlights are aimed in your driver's side mirror and that darn flashlight that he or she is wielding glances strong rays into your eyes, who knows if it was intentional, but we'll hope that it was not! The officer introduces himself/herself and then usually explains why you were stopped...
or, the officer may ask you that infamous question, "Do you know why you were stopped.
" At this point, you have a couple of options:1)Being honest and stating the reason that you believe you were stopped, or 2)Replying with a polite, "No, Sir/Ma'am".
Option 1 may be good because the officer will likely appreciate the fact that you are being honest and could give you a warning (that is what I did when I conducted traffic stops).
Or, Option 1 may be detrimental because the officer may not care and plan to write you a citation either way, in which case, you will have admitted to either the violation that was the reason for the officer's stop or to another violation ...
either way, you should know that almost assuredly your statement will be recorded by the device carried on the officer's person...
so, choose wisely.
Option 2 definitely is within your rights and being polite can never be used against you, especially, if the officer comes across as condescending and cocky, and you remain cool and calm.
This will always make you look good to a judge or jury.
Then, the hard question and basis of this article: "Sir, how much have you had to drink tonight?" or "Ma'am, I smell the odor of metabolized alcohol on your breath, step out of the car and let's discuss this further.
" (Or, any similar variation of this scenario.
) DO NOT refuse to get out of the car! Said another way, do what the officer asked and GET OUT OF THE VEHICLE...
but be aware that every move you make and every word you say will be recorded on a camera system that is installed in the officer's patrol car and via a microphone on his belt or in a pocket on his person.
This means, any excessive walking, stumbling, leaning, etc.
will be used by the officer to formulate probable cause to determine that you are intoxicated and may be arrested..
..
However, refusing to exit the vehicle may just result in you being removed by one or more officers...
Now that you are out of the vehicle, the officer starts asking you questions about what you have drank, when the last time you had something to drink was, what food you've eaten, whether you are injured, etc.
While all of this may seem to be friendly conversation, it is not...
this is designed to gather facts that may lead to your arrest and subsequent prosecution for Driving While Intoxicated (DWI)...
So do you answer these? NO! Think back to all those cop shows you've seen on TV ...
what is the first thing that cops say to people that are arrested...
"You have the right to remain silent..
..
" And that is not just to sound interesting and cool...
it is actually your right and it is provided in the United States and Texas Constitutions...
KNOW AND USE YOUR RIGHTS! The best thing you can do is to tell the officer that you are not going to answer any questions without first talking to an attorney.
Will you get a lawyer on the side of the road...
no.
Will you be allowed to call an attorney while on the side of the road...
no.
So, are you going to talk to the officer...
no.
The officer then may say something like, "Sir, I need to make sure you are okay to drive based off the information I have so far.
Please step over here and follow my instructions.
" Your response: No, Sir/Ma'am.
Officer: Sir, I want you to watch me and let me know that you understand what I am asking you to do...
You: Watch him/her, but do not do the tests.
Do not say that you understand, but DO NOT say that you do not understand.
Officer: Sir, if you do not do the test/task that I am showing you, I am going to have no choice but to arrest you for driving while intoxicated.
You: Okay...
or silent.
This process is likely to go back and forth for a while and when it stops, the officer may ask you to "put your hands behind your back" and advise, "You are under arrest for Driving while Intoxicated.
" You will be handcuffed and searched, then placed into the cramped backseat of a patrol car.
DO NOT SPEAK...
DO NOT START ASKING QUESTIONS...
especially if you are intoxicated...
your language will probably reflect the intoxication through slurred speech and mumbled words..
..
So, we are back to the original question: May I refuse to participate in field sobriety tests / Do I have to answer an officer's questions? The answer is no...
you NEVER have to answer questions as that is your constitutionally protected right to remain silent, and as the law is written today, in Texas and all other states to my knowledge, you do not have to take the field sobriety tests...
like the walk and turn, one leg stand, or horizontal gaze nystagmus.
In summary, most officers have usually made up their mind to arrest when they give the field sobriety tests, and your performance on the tests simply provide additional evidence that will later be used against you.
But that is not true for all officers and I am in no way suggesting that officers are corrupt or that all would arrest you for refusing..
..
Now, an officer will probably testify that the tests were offered to help determine whether you were under the influence and that he had no choice but to arrest you based off the other evidence-odor of alcohol, bloodshot, watery eyes, and any oddities observed in your walking/standing/speaking.
But, if this is all that the State has to prosecute you, there is a much greater chance that you will be found not guilty or that the case would be reduced or dismissed..
..
And remember, the original cause for the officer's stopping you need not be related to driving under the influence of alcohol or drugs, but it gives them the right to get close to you to observe you, smell your breath, etc, to begin building a DWI case investigation.
Many times, you will receive a warning so that this cannot be challenged in court...
but if you are given a citation, CHALLENGE IT...
if you win at this level, you may have eliminated the probable cause for the stop and thus any subsequently obtained evidence.
Routine detentions for equipment and registration compliance, such as a cracked windshield, inoperative taillight, headlights not turned on, and so forth, maneuvering and parking violations, and many other reasons have been held by the courts to constitute sufficient cause.
And in Texas, even if the officer testified that he or she stopped you as a pre-text for a DWI investigation, it is still a valid reason for the stop.
Source...