DWI: The Right to Remain Silent

By Katherine Scardino

The Fifth Amendment to the U.S. Constitution protects citizens from being forced to incriminate themselves in testimony. To “plead the Fifth” is to refuse to answer a question because the answer could be self-incriminating. As a U.S. citizen, you are confronted with this right probably more often than any other issue in the Constitution.

For example: You are a working-class guy. You get a call from a buddy inviting you to the local pub for one beer before you hit the freeway for your hour-long commute home. You leave work, stop by the pub, have one beer, and chat a while with your friend. You leave, get in your car, and start your long drive home for dinner and family. You feel fine, in no way impaired. Unfortunately, a police officer sees you “slide” through a stop sign and stops you for a traffic violation. The officer comes to the driver's-side window, ask for license and proof of insurance. You hand them over readily. As you hold them out of the open window, the officer smells beer and asks you to step out of the car.

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.

You are wrong.

The officer’s goal from this point forward is to gather enough information and evidence to make an arrest. If he smells the slightest odor of alcohol on your breath, he most likely has already decided you are intoxicated -- or at the very minimum, that you shouldn't be on the road with the rest of us.

The officer asks you questions: where have you been? When was the last time you ate? What did you eat? Who were you with? Where are you going now? And of course, did you have anything to drink? He'll ask any other question he thinks may give him enough cause to arrest you.

This is the telling moment. Are you going to answer his questions at all? Are you going to answer them and truthfully? Are you going to answer the questions, but lie?

Your correct answer is none of the above. You're going to tell the officer: “I refuse to answer these questions without an attorney." If you start answering his questions, you are building a prosecutor's case against yourself. You're not using your Fifth Amendment right to simply shut up.

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.

So, here is this officer, looking intimidating in a dark blue uniform, a gun on his hip, a badge on his chest -- and all he wants you to do is “walk a line.” The catch is that he tells you to do it in a very specific manner. For example, when you get to the end of the line, you must “pivot” back around. If you perform that task, then the officer will ask you to stand upright, arms stretched out to the side and then tell you to touch your nose with your hand. He'll tell you “left” or “right,” meaning you'll touch your nose with either hand at his call.

Another, more ridiculous test has to do with horizontal gaze nystagmus. It's a test that gives the officer (who has had zero training in opthalmology) several “clues” by shining a penlight in each eye and asking you to follow the penlight with your eyes as he moves it from side to side. This has been a very simplistic explanation of the tests you'll face, but the point is: Do not do them. An M.D. I spoke to about this said it's is impossible to get a good “reading” from this type of test on the side of the road.

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.

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