Avoiding Arrest, Part 3: Dos and Don’ts of a Traffic Stop

Never admit to having used any kind of alcohol or drugs to an officer, regardless of the circumstances of your stop. Always remember that even prior to your arrest and being read your Miranda rights, certain pieces of information will remain admissible as evidence, such as what gave the officer reasonable cause to detain you in the first place.  If you give the officer no such cause and you are subsequently arrested, you may be able to use your own good behavior prior to the arrest as proof that the officer had no reason to detain you in the first place.

It is perfectly fine to alleviate an officer’s concerns by offering to get a ride home with a friend or take a cab.  If they accuse you of knowing that you should not be driving, let them know that you absolutely do not agree that you are impaired in any way, but that you realize the officer is trying to do his job, and you are more than willing to cooperate in every way by obtaining alternative transportation home.

Even if you “play by the rules” all the way through the traffic stop, and even if you really are not impaired by alcohol, you may still be arrested.  However, it is important that you still remain calm.  Police officers are charged with the responsibility of keeping society safe, and if they have any suspicion that you have or will commit a crime, it is their responsibility to arrest you.  It does not mean that you will actually be charged or go to trial. It does mean, however, that you will be asked to consent to alcohol concentration tests.  If an officer smells alcohol on your breath or if you admit to having drinks before driving, you are more likely to be arrested.

Remember, the only true way to avoid being arrested for a DWI is to not drink and drive. Anyone who has had even one drink and then gets behind the wheel runs the risk of being detained or arrested for a DWI.

If you are stopped by police, remain calm and polite. Do not admit to any wrongdoing, whether it be a traffic violation or drinking before driving.  Remember that your behavior may affect whether or not you are further detained by the officer.
Willingly comply with providing your license and proof of insurance/registration card to the officer.  Do not, however, agree to any field sobriety testing.  Be polite, but firmly refuse. Do not get out of the vehicle unless you are ordered to (not requested to, but required to) by the officer.

Ask to contact your attorney immediately, and offer to get a ride home or take a cab if the officer is concerned.  Be clear about your reasons for doing this – that you are attempting to cooperate with the officer, but do not agree with his or her assessment of your impairment.

Refusing an alcohol concentration test may be admissible as evidence against you and will result in up to a two-year license suspension.  Remember that in some cases, such as when there is an accident or a death, you may be compelled to comply with alcohol concentration testing. In the next chapter, we will go over in more detail what happens if you get arrested.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

Pulled Over for DWI, Part 1: Talking to the Officer

When you are pulled over for a traffic stop in which an officer suspects any kind of alcohol ingestion, the officer will attempt to engage you in extended conversation. This conversation is not friendly banter, nor is he interested in hearing your answers.  The only thing the officer is doing is attempting to measure your impairment and find reasonable cause to detain you further or do more testing.

Be polite, provide your identification and vehicle registration, and answer necessary questions shortly and succinctly.  Do not try to explain your way out of the stop, do not offer additional information, and do not attempt to argue with the officer.  Never volunteer where you were, what you were doing, or how much you had to drink.
Even more importantly, do not curse or argue with the officer.  Realize that, while you are stopped, the officer will be looking for any clues that you are too impaired to drive.  Your behavior can be a clue and may be accepted as reasonable cause to conduct additional testing or to arrest you.  Be polite to the officer, remain as calm as possible, and remember that whatever you do or say may find its way into a courtroom as very damaging evidence if you are arrested or charged with DWI.

To read more, stay tuned for Part 2: Field Sobriety Tests

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

Pulled Over for DWI, Part 2: Field Sobriety Tests

While your implied consent in cooperating with blood, breath and alcohol testing is assumed by the state of New Hampshire, the state also assumes your implied consent in complying with the standard field sobriety tests that police officers have you perform in order to determine whether or not you are impaired by alcohol. Although it may result in the administrative suspension of your license, which you can later appeal, you should never agree to perform these tests. The results of these tests can only be problematic for you later, because even if your alcohol concentration level is below the legal limit, the police officer can testify about failed sobriety tests it at your hearing.

Field sobriety tests can include everything from being asked to touch your nose with the tip of your finger, to reciting the alphabet backwards and/or doing mathematical calculations.  Do not do them!  Do not be belligerent with the officer, but politely refuse to take the field sobriety tests.

Field sobriety tests are far too dependent upon one officer’s subjective judgment and do not fully rely any kind of science.  Your performance on these exercises may depend more on how tired you are or how coordinated you are rather than on how much alcohol you have consumed.  There are circumstances under which you may not pass them even if you have had nothing to drink.  Not only will the officer testify against you at a trial, but quite often a camera captures these tests on video (which is also admissible), and the evidence can be damning.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.

Alcohol Concentration Test Refusal in New Hampshire

Since New Hampshire’s laws assume that you automatically give consent to test for alcohol under the implied consent rule, if you are injured or incapacitated in any way and thus incapable of refusing to take an alcohol concentration test, you have not waived your permission to be tested.

The Supreme Court of New Hampshire has time and again upheld the implied consent rule and admitted the evidence of sobriety field tests and blood-alcohol chemical tests even when the defendant has motioned for the results to be suppressed.

When Should You Refuse Testing?
Obviously, having a DWI conviction on your record is something you want to avoid at all costs, and the prosecutor will have a more difficult time proving your guilt without the solid evidence of the results of a blood-alcohol chemical test to present. However, refusing to submit to the test results in an automatic 180-day license suspension or more – even if you are later found not guilty of the actual DWI charge.

Additionally, even if you refuse testing, if the police officer can provide enough other evidence to a judge that there is reasonable cause to believe that you are under the influence of alcohol, then a warrant ordering you to provide a blood sample or submit to other testing may be issued. Even without alcohol concentration testing, the officer’s testimony about your behavior, as well as other evidence or witnesses can still be used to convince a judge or jury of your guilt.

Furthermore, if you are involved in an accident, particularly one with injuries and/or a resulting death, there will most likely be no way to avoid the testing. You do have the right to have enough breath, urine, or blood taken so that you can have the second sample independently tested, and the officers must provide you with the results of their testing within 48 hours, otherwise the results may be ruled inadmissible as evidence.

Can Your Refusal Be Used as Evidence?
If you refuse to consent to an alcohol concentration test, that refusal may be admitted as evidence against you at your trial.  Refusing to take the test can make it appear as though the only reason you would refuse would be because you knew your alcohol concentration was over the legal limit.  While some states instruct their juries to ignore the refusal and admit it only as proof that a test was offered, New Hampshire allows it as evidence that can be used against you and you will be instructed of this if you have been arrested and refuse to submit to the test.

Attempts to suppress this evidence have been unsuccessful and the courts have consistently said that as long as the jury is instructed to consider the evidence and come to their own conclusions, it violates neither self-incrimination rights nor prevents the defendant from providing other evidence about why the test was refused.

This post contains excerpts from The DWI Book, the definitive guide to protecting your rights in the face of New Hampshire’s tough DWI/DUI laws.