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Regardless of whether you are actually under the influence or impaired by drugs or alcohol while operating a motor vehicle in Washington DC, one of the worst things that can happen to you in the District, is to be pulled over by a law enforcement officer. Many times you may be pulled over because of a basic traffic violation, or faulty equipment on your vehicle, which then eventually can lead to a DWI, DUI or OWI arrest if you happened to have had any alcohol or other substances in your system at the time or prior to the time of the arrest. At other times, you may be pulled over for improper driving because a law enforcement officer specially suspects that your driving is impaired by drugs or alcohol. Whatever the reason may be, there are still measures you can take to limit the possibility of being arrested of DWI/DUI/OWI or to mitigate the harsh consequences of a potential conviction if you are actually arrested and charged with a DWI, DUI or OWI.
GUARANTEED METHOD TO AVOID A DWI/DUI/OWI ARREST: The only guaranteed way to avoid a DWI, DUI or OWI arrest, charge or conviction is to not get behind the wheel at all if you have consumed alcohol, drugs or any other substances which may impair your driving or judgement. If you plan on consuming alcohol or such substances, or you already have done so and then find yourself in a situation which requires you to transport yourself to another location, please just call a cab, a car service such as Uber, or find a sober, designated driver . Even if the extent of your alcohol or substance consumption consists of merely a glass of wine at dinner, or a few table spoons of cough medicne for -an illness-in the morning before work, PLEASE DO NOT DRIVE! All it takes is one instance of being pulled over and an officer’s mere suspicion on impairment to land you in the back of a squad car, in handcuffs with the police station as your next destination. It takes all the liability off of you, and it makes the roads safer for everyone. Nothing in this guide should be construed as condoning drinking and driving. Ignorance, however, is not a virtue. And if you find yourself being pulled over for suspected DUI, you should know your rights and the best course of action.
When You Are Pulled Over: It is important to recognize and understand that, first and foremost, a law enforcement officer always needs a legally valid reason to pull you over. DUI check points, running a red light, running through a stop sign, failure to obey a traffic or highway sign, speeding, etc., are all examples of valid, legal reasons to stop you and your vehicle. If you notice the read and blue flashing lights- and possibly the siren- of a police squad car behind you, pull over to a safe part of the road immediately (as soon as you realize that the officer is trying to pull you over). DO NOT try to flee, give chase or make the officer engage in any kind pursuit. This can and will most likely make any situation worse, and possibly instill a guilty perception in the mind of the officer before he even has a chance to pull you over. Once you have actually stopped and have been ‘pulled over’, the law enforcement officer will approach you while you are in your vehicle most likely as you, “Do you know why I stopped you?” At this moment, it is critical that you maintain control of yourself and your wits and respond intelligently, or as intelligently as possible given the circumstances.
Be calm, respectful and polite, to the officer and his question. It is wise and advisable that you DO NOT respond to this question with a “Yes” or “No,” or with a guess. In fact the best response to this question is to simply and politely ask the officer why he or she stopped you. If you admit to improper driving, speeding, running a light, or swerving, changing lanes without signaling or if you immediately offer up the fact you have had a few drinks or are impaired in any manner, then you’ve have completely legitimized the stop.
Providing your License and Registration: After the officer asks if you know why he or she pulled you over, and after you should have asked the same question back to the officer, the police officer may or may nor give you an immediate response. Regardless of whether he responds or not, the officer’s most likely next action will be to ask you to provide him or her with your license and registration. The police officer does so that your information can be sent through to dispatch or to his in-vehicle computer to see what your driving record (and criminal record if yo have one) is.
Answering All of the Officer’s Questions: At some point, shortly after checking your information by way of your license and registration, the officer will return and will ask you, “Have you had anything to drink tonight?”
This question posed by the officer represents an extremely critical stage once you have been pulled over. You must be be very calm , collected and intelligent in the way you choose to respond to this question.
If you haven’t had anything to drink, then confidently say “No” if that is actually true true.
If, on the other hand, you have consumed alcohol or something that may impair your driving/judgment, and it is not true that you have not had anything to drink tonight, then confidently say to the officer, “I don’t want to make any statements.”
It maybe very difficult to say, “I don’t want to make any statements,” but if you have indeed consumed alcohol or anything that may impair your driving/judgment it is the response that may save you from the harsh consequences that will likely follow if your response was some type of a false statement or “Yes I have had a drink(s).”
Many people who have indeed consumed alcohol or something that may impair driving/judgment before being pulled over, find it hard to resist human nature, and find themselves wanting to cooperate and show the police officer what a nice, peaceful, harmless person they are. But telling the officer you have had anything at all to drink or trying downplay the amount you had to drink (ex. , “Officer, I had a half glass of red wine with a very large meal about 3 hours ago), will sill be enough to provide the police officer with evidence that can and most likely be used by the officer use to arrest you. If you do not provide such evidence, by refusing to give it or offer it up, it may result in you not being arrested.
Keep in mind though, there is no guarantee that by not providing such statements/evidence you won’t be arrested- the office may still choose to arrest you based on his observations and suspicions- it simply increases your chances of avoiding arrest and most definitely mitigates the amount of evidence that may be used against you in any further prosecution. If, however, you are arrested anyway, not providing such statements/evidence to the officer while you were pulled over may lead to the charges against you to be dismissed because the arrest was unlawful. At the very least, refusing to give the officer statements/evidence/details about whether you consumed alcohol or substances that impair driving will give a competent and diligent attorney, whom you choose to represent you if you are charged with a DWI, DUI or OWI in the District of Columbia, the ability to deploy an aggressive and well founded basis in challenging an actual arrest.
Field Sobriety Tests (FST): At any point while you are pulled over, if the law enforcement officer has reason to believe that you’ve been drinking, or consumed anything that may impair your driving, the officer will most likely ask to you step out of your vehicle so that he can conduct a few field sobriety tests (FST). The officer will usually state that he wants to conduct these tests “just to be sure you’re OK to drive.” While the officer may be telling the the truth, he is also, again, trying to create and provide a situation or avenue for you give the officer evidence of being under the influence or intoxicated.
In this situation, if you are asked to give your consent to allow the officer to conduct the Field Sobriety Tests, you are legally allowed to respond with “I don’t want to take any field sobriety tests.” However, it is extremely important to differentiate between the officer asking for your consent to conduct the tests and the officer actually ordering you to perform these tests. DO NOT REFUSE A DIRECT ORDER– refusing a direct order to perform the tests can and most likely will lead to you being charge for obstruction of justice. If the officer is directly ordering you to perform the field sobriety tests or ordering you to do anything else, it is still important for you to make it clear (by verbalizing calmly) that you are not doing anything “voluntarily.” As stated, the officer’s intent in having you perform the FSTs isn’t really to “be sure you’re OK to drive.” Again, the officer’s main intent and purpose in doing so is to try to get more evidence to arrest you. DO NOT GIVE UP THIS TYPE OF EVIDENCE.
The Preliminary Breath Test (PBT)/Breathalyzer: Many times, in addition to or in lieu of the Field Sobriety Tests, the police officer will ask you to take a “Preliminary Breath Test” (PBT)/”blow” into a breathalyzer. The PBT is a hand-held portable breath analyzer. The PBT is normally conducted on the spot, there at the scene of the incident (the place where you have been pulled over). Once again, the officer will state or explain that, “the PBT is necessary to gauge of how much alcohol is in your blood, just to ensure you are OK to drive home.” You will also, likely, be told that the PBT can’t be used against your in court. This is not entirely true and therefore it is advised that you refuse to take/”blow”/submit to the Preliminary Breath Test.
Refuse the breath test because IT CAN BE USED AGAINST YOU IN COURT. It must be noted, that the hand held preliminary (at the scene) breath test cannot be used the same way the regular breath test at the station is used, but it is routinely used in court to show that the officer had “probable cause” to arrest you. DO NOT GIVE THE OFFICER PROBABLE CAUSE. REFUSE THE BREATH TEST. If the officer arrests you without enough evidence to do so, it doesn’t matter if he gets more evidence at a later time– the case will be dismissed, regardless.
The DUI Arrest: An actual DWI, DUI or OWI arrest occurs or has occurred when the law enforcement officer, who has pulled you over, tells you that you are under arrest for DUI/DWI/OWI, handcuffs you, and places you in the backseat of his squad car/police cruiser.
At this point, you have the right to remain silent and you are highly encouraged to exercise that right. Don’t volunteer information, make any statements regarding anything or engage in small talk -even if it is about the weather or some trivial subject such as the Redskins. If the officers asks for your name, address, social security number, date of birth, or any of that type of information, you should provide it, but nothing more and absolutely do not provide anything substantive.
Breath / Blood Test At the Police Station: The officer will read you a law called “Implied Consent” that says you have to take a breath test at the station and will also ask if you will take/consent to the test.
This is a complicated scenario. The law says you must take the test. If you do take the test, the machine (much larger and far more accurate than the PBT) will produce out a certificate saying what your blood alcohol content is. The number on that certificate, and the certificate itself, can be used to prove you were over the legal limit of .08. If you blow .20, it triggers a mandatory minimum days in jail and driver’s license revocation (or revocation of driving privileges if you are not a resident of the the District of Columbia) , and above a .20 will get you 10 days– more in some circumstances. So– blowing can send you to jail. BUT if you don’t blow, you may be charged with Refusal. A first offense refusal is not a crime – it’s a civil charge. However, it can cost you your license for 12 months with no restricted license. Restricted licenses are routinely issued on low level and first offense DUIs. Because the law of Implied Consent requires you to submit to this breath test, you should.
Nabeel Kibria is a principal attorney of Ervin Kibria PLLC, representing clients in criminal and immigration matters throughout DC.