What should I do if I am pulled over and have been drinking?

Pulled over while drinking and driving The U.S. Supreme Court has recently considered what it takes to invoke the “Fifth”, that is, your right to remain silent.  The case is Salina v. Texas.  It says basically, that a person who is talking to police and not under arrest, must say to the officers that he is invoking his Fifth Amendment right or at least say he will not answer any questions without a lawyer present.

In other crimes, if you invoke your right to remain silent and ask for a lawyer, the prosecutor will not be able to mention this in trial.  In DWI case, the state will likely be able to make an argument to the jury that you are guilty because you did not explain yourself to the officer and only guilty people ask for lawyers.  This is unfair.

The Salina case has not been applied to a DWI stop, but, it does suggest that if you do not want to talk to the police officer, one must say why they wish remain silent until they consult with an attorney.

To get through a DWI stop without giving the officer what is needed to convict you, takes a lot of courage.  Know that once the officer thinks you have been drinking, you most likely will get arrested, no matter what you do anyway.  If you ask for a lawyer, the state will mention that in trial.  But, it is better than watching a video of you admitting to drinking and stumbling on the field sobriety tests.

Do not perform the field sobriety tests.  The law does not say you must take them.

Whatever you say, if asked how much you have had to drink, do not say a couple.  This is a red flag to the officer that you have had more than a couple.

If asked whether you have been drinking or how much have you had tonight, ask the officer if you are a suspect.  Ask if you are under arrest.  If you are not under arrest say you wish to leave.  The officer will say no.  If you can’t leave, then you want a lawyer.  The officer will say you do not have a right to a lawyer.  Politely say “I will not answer any questions or perform any tests unless I have a lawyer present.”

So, if the officer has it in his mind to arrest you the second he says “sir have you been drinking?” why would you tell him anything or submit to any tests?

I’ve asked officers how many people they cut loose after making them do the field sobriety tests.  His answer: none.

Officers are trained to ask you to get your license and insurance and while you are doing that, he or she is trained to ask you questions and make you respond while you are trying to do something else.  This would be difficult for many people, whether intoxicated or not.  Being pulled over and questioned by a police officer is a stressful situation.  If you get tripped up, the officer makes notes and concludes that it was because you have been drinking.

So what are these standardized field sobriety tests?

  1. Horizontal gaze nystagmus (known as HGN)
  2. Walk and turn
  3. One leg stand

The standard field sobriety tests turn you into a one person circus act. The instructions for how to give the tests come from the National Highway Traffic Safety Administration.  This is part of the U.S. Department of Transportation. The standard field sobriety tests or known as SFST’s, are used nation-wide.  They are said to be scientifically proven… by the government.


The HGN test is the only one of the three in which we really have to take the officer’s word on the matter because there is no close up video of your eyes on the DWI video.  The jerking of the eyes is also not easy to detect. You are hoping the officer is not just shall I say, “eyeballing” the test.

When an officer gives the horizontal gaze nystagmus test, he shines his flashlight so that he can see your eyes and the officer asks you to follow his pen or finger.  The officer moves his or her finger to each side.  What they are looking for is three clues for each eye for a total possible 6 clues:

  1. Lack of smooth pursuit.  He is looking for your eye to jerk when trying to follow the pen;
  2. Onset of nystagmus at the onset of 45 degrees; and
  3. Distinct and sustained nystagmus at maximum deviation. In other words, when you are looking to the side as far as you can go, your eyes will clearly jerk and continue to do so.

What all that means is, the government believes it can detect intoxication by looking at how your eyes respond when trying to focus on a moving point.  Alcohol can affect the signals your inner ear (vestibular system) sends to your eyes.  Alcohol is one of the things that can cause a fluid imbalance in the inner ear.  The vestibular system sends signals to parts of the brain that controls eye movements.   The inner ear contributes to balance.

If there is an inner ear problem, your eyes will jerk instead of following something smoothly.  They also will jerk when your eyes are at a 45 degree angle.  They will jerk, as they say, distinctly and continuously when you are looking all the way to the side, if there is a fluid imbalance.   Each of the three events are called clues.  There are a total of 6 clues, three in each eye.  The government thinks that if an officer observes 4 of those clues, it can detect a more than .10 blood alcohol concentration 77% of the time.

If the officer has you facing his still flashing lights, this can cause optokinetic nystagmus.  This is jerking of the eye when focusing on an object quickly moving out of site or looking at a strobe light.  If you have been spinning, like at an amusement park ride, this can cause your eyes to jerk when looking side to side.

For the HGN test to be “accurate,” the officer must perform the test correctly.  If he or she does not, his observations cannot be used against you.

Walk and Turn

Here, the officer will have you stand on a real or imaginary line with your left foot on the line.  Then put your right foot in front of the left with the heel of the right touching the left.  He will tell you to put your hands to your side.  You stand there while the officer talks to you.  If you move out of that it counts against you.

Now, the officer will tell you that when he tells you to start, take 9 heel to toe steps and count it out loud.  When you turn, keep the front foot on the line and turn with the other foot.  Walk back 9 steps.

When you are under stress, this is not easy to do.  So what is the officer looking for?

  1. Can’t balance during instruction phase.  Meaning, you tilt or put your foot out while the officer is giving instructions;
  2. Begin too soon.  This is the “Simon says” part. If you are not paying attention, you could get a strike for this;
  3. Stop while walking.  To not get a demerit, you have to do the whole thing through without stopping;
  4. Fail to touch heel to toe.  If you leave more than half an inch between your heel and toe, you get a strike;
  5. Step off line;
  6. Use arms to balance.  Don’t we do this every day?
  7. Lose balance on turn or turn incorrectly; and
  8. Take wrong number of steps.

The government thinks that if you have at least 2 of the above strikes on the walk and turn, COMBINED with the 4 clues of the HGN, 80% of the time they will have a suspect with a blood alcohol content of .10.

One Leg Stand

This is what they call a divided attention test.   In other words, the officer is trained to make you do things while he keeps giving you instructions.  You must stand there while receiving instructions with your feet together and your hands at your side.  You will lift whichever leg you want six inches off of the ground, toes pointed out and leg straight.  You are supposed to keep looking at your foot and count “one thousand one, one thousand, two” until the officer tells you to stop.  This will go on for 30 seconds.  Here is what the officer is looking for:

  1. Sway while balancing
  2. Uses arms to balance (don’t we do that every day?)
  3. Hops
  4. Puts foot down (too soon)

2 or more clues and the officer will consider you to have failed the test.

Even though the government thinks you do not have the right to remain silent during a dwi investigation and they don’t think you are in custody even though the officer will not let you go, why not ask for a lawyer and give them nothing? They will certainly use anything you say and do against you.