You have just started down the “DWI Road to Hell.” Let’s assume you're not intoxicated and you know that one beer won't impair your usual and normal faculties. You believe you could pass any test.
The officer will ask you to perform a set of Field Sobriety Tests, a set of pretty silly tasks. After all, you're standing on the side of the road -- and the road surface is uneven. It's most likely dark. You may have some physical problem, such as arthritis, that may cause a knee or leg to creak every now and then. You may not see as well at night as in daylight. You may simply not be able to balance yourself, or, if you're like me and a lot of other people, you can't chew gum and walk across a room at the same time.
Regardless, your correct response is: “I refuse to perform these tests without an attorney present to advise me."
You will now be arrested for Driving While Intoxicated.
You'll be handcuffed, pushed into the back of the police car, and taken to the local county jail for the video of these same, side-of-the-road tests. You'll be taken into a small empty room. A video camera will be mounted on the wall opposite the doorway. You'll be videotaped performing more tasks inside this room, if you do them. Instead, your answer to each test command is: “I want to cooperate with you, but I refuse to comply with your requests until I have had the opportunity to consult with my attorney.” (Remember, you are on video and your jury will ultimately see this video, so you want to look and sound polite at this point.) Plus, the camera is focused on a point on the wall where there's a visible line so that if your body sways just a little, it will be apparent on the video.
After you refuse the tests for the video, you'll be asked to blow into a machine known as an Intoxilyzer or Breathalyzer. In this test, the machine is supposed to determine whether you are legally intoxicated -- without knowing your gender, height, weight, how much you are used to drinking, whether you have eaten, and any other personal information relevant to determining whether you are too impaired to drive a car.
You'll refuse this test, too. Refusing it may cost you your driving privileges at least until an administrative hearing. But by then you'll have an attorney appear with you, and at the minimum, your attorney can use this hearing for discovery -- learning what evidence, if any, the prosecutor has. Your attorney can subpoena the arresting officer for this hearing and ask him some questions for the record.
Meanwhile, after refusing all tests, you'll be booked into the local county jail, where you'll sit until your friend or family comes down to the jail in the middle of the night to post your bond or find a bondsman to get you out of jail.
But, you say, all I did was exercise my right not to help the State build its case against me. That's true -- but by refusing to perform these tests, you leave the State with no evidence but the opinion of the police officer. You've made no admissions about a number of beers you may have had; it has no video of on the side of the road doing any of these Field Sobriety Tests. That will make it a lot easier for an attorney to defend your against the charge and more likely your defense will succeed. It's a lot harder to get a conviction with only the opinion of the police officer. He's not an expert; he's not a doctor.
Now that the Christmas season is here, it's more likely the above scenario will happen to you. Some people will say: if you're not intoxicated, why refuse to answer questions or perform roadside tests? My answer is because you can.
Tiger Woods had an automobile accident last week. He was taken to the hospital and only gave the pertinent, required information to the police agency investigating the accident. He was criticized loudly because he didn't sit down with the officer and regurgitate every single thing that he and his wife talked about that night, every word that came out of their mouths in anger or hurt. It was none of our business. Repeat: it was none of our business. And it was none of the police officer’s business.
So, be careful out there. Be safe, but remember that you don't have to perform any task or answer any question. Don't help the State prosecute you. Be careful with your drinking, and bring along a designated driver. No one promotes drunken driving; that's stupid. Exercising your right to shut your mouth so you don't help a prosecutor build a case against you is not stupid.
Remember: it's easier to defend against a DWI charge when there is no evidence.