Pulled Over? Top 10 DWI Mistakes


Often people are shocked when they are pulled over and investigated for Driving While Intoxicated.  Sometimes people temporarily freeze, and don't immediately react to the lights activated by the police. It is best to immediately recognize that a traffic stop is being initiated, and then look to pull over as quickly possible in a safe location. When pulling over, be sure to use your blinker to indicate your maneuver. This can help show that your "mental" faculties were present, which is one of the criteria used to determine whether someone is guilty of DWI.


After you safely maneuver to pull over on the roadside, immediately locate your driver’s license and insurance. When the officer approaches your vehicle, give him both documents and say as little as possible. If you don't have both documents in your hand when he approaches, he will ask you to get the one you don’t have, and then will simultaneously ask unrelated questions to test your "divided-attention." Avoid this, and immediately locate your driver’s license and insurance and hand immediately it to the officer when you roll down your window. 


Often people say entirely too much during a DWI investigation. Arresting officers are trained to illicit incriminating statements that can be used later in trial. Simple statements that seem relatively harmless when spoken can be turned into something that may be interpreted as an admission of guilt. There is also the possibility that your words come out sounding jumbled and confused, possibly caused by the tension or nervousness. Instead of relating them to being nervous, the arresting officer will equate this behavior to you being intoxicated. Saying too much can also lead to information that can help place a driver "behind the wheel" of the car when the "operation" of the vehicle is not directly observed.  Thus, it is best to say as little as possible during the entirety of the DWI investigation. Be polite. Be courteous.  But only answer questions directly addressed to you and minimize the response.


In many DWI investigations, the arresting officer will say something to the effect of, "I just want to see if you are able to drive home safely." Usually people mistakenly assume that this is true.  Usually it is not.  More often than not the mind of the investigating officer is made up when they ask a driver to perform the standardized field sobriety tests.  Most people agree to perform them because they are hoping they will pass and will be let go.  Also, often statements are made to the arresting officer such as "I know I shouldn’t have been driving" or "I know I should have let my passenger drive the car ."  Most of the time people say things of this nature to be agreeable, and not necessarily because they are true.  Saying things like this can highly damage your DWI case, because it will undoubtedly be turned into a statement of an admission of guilt. It is human nature for someone that is under investigation for a DWI to say something like this when faced with the possibility of going to jail.  It is best, therefore, to try and say as little as possible and offer nothing further than what is required.


DO NOT perform the roadside tests under any circumstances.  There is absolutely no legal requirement for you to take any of the standardized field sobriety tests.  The investigating officer will request you to perform these tests because they believe you are intoxicated. Most of the time their mind is already made up, and they are only seeking to gather additional evidence to help secure a conviction. There are many reasons independent of intoxication for why a person would not be able to do perform well on t physical tests, such as fatigue, nervousness, physical disabilities, detrimental road or street conditions, wind, weather, weight, or age.  

It is also impossible to know ahead of time whether the officer will give the proper instructions according to the NHTSA guidelines when demonstrating the standardized field sobriety tests.  The grading criteria is highly subjective, and people often have no idea what the arresting officer is looking for.  The sad truth is the standardized field sobriety tests are designed for failure! You do not get to study, practice, or retake the test after you perform them.  No one in any other circumstance would take a "blind" test without knowing first what is being graded. The deck is stacked against you.

Sometimes people refuse the Walk and Turn Test and the One-Leg stand test, but agree to the Horizontal Gaze Nystagmus (HGN) Test.  REFUSE THE HGN ALSO.   It is perhaps the most subjective of all the tests. Usually only the officer will be able to see what your eye movements are.  Contrary to popular belief, they are not testing your ability to follow the tip of the pen. Most people agree to take the HGN because they think it will be easy to merely follow the tip of a pen.  However, this is not what the arresting officer is looking for.

REFUSE ALL TESTS, INCLUDING THE HGN!  Politely inform the officer that you are exercising your right to refuse, and inform him that you would like to speak to your attorney as quickly as possible.


Many people voluntarily submit to giving a chemical specimen following a DWI arrest because they are afraid to refuse a request made by a police officer.  We are trained at a young age to follow the rules and respect our law enforcement officers. However, exercise your constitutional right to refuse. Do not simply take the test because you think you have to.

Often people agree to take a breath or a blood test because they think they will pass. Remember, when you are finally asked to submit to a breath or a blood test, you are already under arrest! The arresting officer will not un-arrest you. Nothing you say, do, or blow into, will lead you to being released once arrested and taken into custody.

Also remember that if you consent to giving a breath sample and YOU DISAGREE with the result, you have the right to request an independent blood draw be taken. You will have to provide your own phlebotomist within a reasonable amount of time.  The reality of the situation, obviously, is that it is virtually impossible to arrange for a phlebotomist to come to the jail to take a blood sample. However, I think a person should still ask.  If you do submit to a breath test and it is shown that your BAC is above a .08, the mere statement that you would like an independent test shows that you very much disagree with the result that was obtained. Most people are unaware of this right, and it is therefore seldom invoked.


Almost all DWI investigations and arrests are videotaped. Officers usually have an in-dash camera that can record the details of an arrest. They have the ability to manually turn on their cameras while driving, and some automatically activate when the emergency lights are turned on. Usually the video starts right around the time of the traffic stop. Everything after this, therefore, is recorded with audio and will be on camera. Sometimes people are horrified at what is recorded when they review it later.  The video is perhaps the most important piece of evidence the state will have to use against you at trial. Usually the jury will rely more on this than any other piece of evidence. So remember, be mindful that everything is likely being recorded.


Emotions can run extremely high once the reality sets in that a person will be arrested for a DWI and taken to jail. Up until this point most people still believe there is a possibility that will somehow avoid being arrested and taken to jail.  People usually experience a wide range of emotion once people realize the finality of the situation after the handcuffs are placed on.  It is not uncommon for people to cry, whine, and beg following the arrest. People often plead with the officer in a last ditch effort to somehow talk them out of being arrested.  Remember, the video not only records the roadside tests, it will likely be recording everything in the patrol car during the ride to the station. It is best to remain calm during transport.  Crying, begging, and weeping will only be interpreted as a sign of intoxication.  Try and remain under control following the arrest and during the transport to avoid any emotions that could be correlated to intoxication (even if you happen to just be an emotional person by nature).

9) "ON A SCALE OF 1 TO 10..."

Arresting officers like to ask the question, "On a scale of 1-10, how intoxicated would you say that you are?" Avoid answering this question. This question alone can be the difference as to whether someone is convicted or acquitted at trial.  If you are asked this question, politely decline to answer. If the investigating officer persists for an answer, tell them your answer is YOU ARE NOT INTOXICATED.  When people associate the answer on a number scale virtually any answer legally means that you are "Guilty" of DWI. The definition of DWI in Texas is "any loss of your normal mental, or physical faculties, by reason of the introduction of alcohol."  Therefore, any answer above 1 would technically mean you are "Guilty" of DWI.  It is natural for people to answer a scale question somewhere in the middle of the result. DO NOT MAKE THIS MISTAKE!  AVOID ANSWERING THIS TRICK QUESTION!!!


Many people become very annoyed or agitated that they are being investigated for DWI. People usually have a thousand things running through their mind, and usually just want to be able to go home.  Spending the night in jail, having to get bonded out, and facing a possible DWI conviction is usually not something people look forward to. Because tensions run high, sometimes people can treat the investigating officers in a very rude manner.  This is not wise. Even if all other signs point to an individual NOT being intoxicated, a jury might convict simply because they perceive the defendant as a jerk. People also think they can argue their way out of an arrest if they are persuasive enough. A DWI arrest is a highly subjective crime and is left 100% up to the interpretation of the arresting officer. When people disagree with being accused of being intoxicated, it is a very natural tendency to want to argue about why this determination is wrong.  HOWEVER, AVOID ARGUING.  You should always treat the investigating officers with dignity and respect.  Right or wrong, they are just trying to do their job. You can politely tell them you disagree with their decision, but you respect their position of authority to make it. Going overboard and engaging in a heated argument will only help damage your case when viewed later by prosecutors, judges, and juries.

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