You are stopped by the police for a moving violation, e.g. speeding, or an equipment violation, e.g. tail light not working, or at a DUI/DWI checkpoint. The officer comes to your window and the investigation begins. The officer may just ask for your license and registration but he is looking at your eyes, he is trying to smell your breath for the odor of alcohol, he is looking at your dexterity or lack thereof in retrieving the requested documents. .

Now, having smelled alcohol, he will ask you a series of questions designed to elicit incriminating information. Specifically, he wants to know if you have been drinking and how much. Do you have to answer these questions? NO. Be polite; always maintain your composure because the officer will be frustrated that you are hindering his attempt to arrest you. Say as little as possible, depriving him of the accusation of slurred speech, but inform him that on advice of counsel you respectfully will not answer questions.

He will then ask you to step out of the car. He is looking for poor balance and lack of coordination when you open the door, rotate your body in your seat, place your feet on the ground and come to a standing position. Should you get out of the car? Yes. If you obstruct the investigation, the officer will have probable cause for an arrest based upon the obstruction and deprive your lawyer of bringing a motion to dismiss the case for lack of probable cause to arrest.

Once you are out of the car and standing, the officer will inform you that you will be asked to participate in Field Sobriety Tests (FSTs). When it seems an appropriate time, you should politely decline, again citing advice of counsel. I will go into the details of the individual FSTs in the next Blog, but just know that you are under no legal obligation to participate. FSTs are a battery of tests designed to show impairment. There are no standards or mechanisms for grading performance. It is a no win situation.

The ramification of the decision not to submit to the FSTs is twofold: most importantly, the officer will be deprived of additional facts illustrating impairment and it will be more difficult to justify the existence of probable cause to arrest. So far, he only has the driving, your appearance at the car window and your stepping out of the car. The other ramification relates to evidence at trial. The judge or jury will be informed of your refusal to perform the FSTs. (NCGS 20-139.1(f)) that can be explained by your lawyer later. Do not worry about it.

Next is the PAS or Preliminary Alcohol Screening device. The PAS can only say that you have consumed alcohol. It is useful only for that purpose since without monitoring by police of a minimum of 15 minutes, it may only be measuring mouth alcohol and not blood alcohol concentration. You should again decline to blow in the PAS. Refusing to blow in the PAS is not a refusal to submit to a chemical analysis and is not a violation of the Implied Consent law.

What is the Implied Consent law? When you sign your name in order to get your driver’s license, you are also agreeing to provide a breath, blood or urine sample if called upon by the police in conjunction with a DUI/DWI investigation. This promise is called “implied consent.” (NCGS 20-16.2(a)) Under the implied consent law, you can still refuse any chemical test but if you do, the DMV will revoke your driver’s license for at least one year and the officer can still seek a warrant to compel you to be tested. (Missouri v. McNeely 569 U.S. _____ (2013). So, there is really no benefit in refusing. You are entitled in North Carolina to call a witness to the chemical test.

Other than your agreement to provide a chemical test, you do NOT agree explicitly or implicitly to do or say anything further to aid in the police officer’s attempt to arrest you. You will not answer incriminating questions in the oral interview at the car window, do not participate in the FSTs and do not blow in the PAS. Your lawyer will be able to evaluate whether there was probable cause to arrest and you have done your best to minimize a less than ideal situation. Be respectful and polite and the officer will not be able to accuse you of being belligerent which he will characterize as a sign of intoxication. Blame it all on advice of counsel. That is what we are here for.