By Christopher Adkins
If you have been out drinking and are stopped by the police while driving home, what should you do? I will give you the most lawyerly answer possible: IT DEPENDS. I say that because it really does depend on a number of things. How much have you had to drink? Have you eaten anything recently? How long of a period of time were you drinking? How much do you weigh? These are all factors that will weigh into determining your BAC and whether you may legally drive.
If, for example, you are a 200 pound man who had two 5% ABV beers with dinner over a one hour period before driving, your probably okay to drive. A rough estimate of BAC in that situation would put you somewhere around a .03 to a .04. If you had, however four 5% beers over that same time period, you might be somewhere around .08 to .09 and it probably would be best not to drive. A woman who weighs 120 pounds, who consumes four 5% beers over the period of an hour might be as high as a .17 to .18. These aren't exact numbers, of course, as alcohol may affect people differently. It does give you an idea, however, of what kind of factors may play into determining your BAC.
In that scenario, if you were the 200 pound man who had two beers over the course of an hour, it might be wise to submit to an Alcosensor test and standard field sobriety tests. It may show the police that you are indeed sober and that you are able to drive a vehicle. If you were the 200 pound man who consumed four beers over the course of an hour, I would not submit to any testing whatsoever. In that situation, all you would be doing is providing the police with evidence to use against you in court.
You also have to consider the field sobriety tests that you are taking. Some people and attorneys might tell you that they are designed to trip you up. This isn't true. They are designed to allow the officer to make his best determination as to your BAC and ability to operate a motor vehicle. Determining BAC and whether someone is sober enough to drive is NOT an exact science. The police officers are doing the best they can with the training they are provided. This being said, the fact that this testing is NOT an exact science works to your advantage.
Many people don't realize the certain factors that may considerably throw off a field sobriety test. The Horizontal Gaze Nystagmus test (HGN), for example, may be thrown off entirely if the subject has sustained a traumatic brain injury (TBI). A TBI may cause resting nystagmus and the artificial triggering of nystagmus at levels not found in average people. This may also be true if the subject is wearing contacts, has to take off his prescription glasses, or has had eye surgery. All these factors may produce false positives for HGN.
Both the Walk and Turn (WAT) and the One Leg Stand (OLS) may be thrown off if a subject has sustained previous injuries to their legs or lower body. A person who has a sprained ankle, for example, will not be able to walk or stand the same way as a person who has not. Also consider what type of footwear the subject is wearing and the surface in which the subject is taking the test. If a subject is trying to perform the WAT in high-heels on a slight incline, they probably aren't going to perform the test as well as a subject in sneakers on a flat surface.
All these factors must be considered before agreeing to take any type of field sobriety test. If you absolutely know that you've had too much to drink, I would not advise that any person submit to a field sobriety test. In these cases, the testing will only serve to be used as evidence against you in court.
One of the rarest, but most effective, tools a person may use when they are stopped by the police after they have been drinking is the pre-arrest test. As discussed in the pre-arrest test section, North Carolina allows a person to be transported, un-arrested, to provide a breath sample. As this is a rarely exercised right, many police officers are unsure of the procedures that they must follow when a person requests a pre-arrest test. If the police officer doesn't follow the procedures correctly, or unlawfully places you under arrest after you request a pre-arrest test, you may be able to win your case in court. Even once you are transported to a location to provide a breath sample, you may refuse to exercise the pre-arrest test. At this point, the officer will have to decide whether they want to arrest you and how to best proceed in collecting evidence against you. This will inevitably pose difficulties for the officer.
If you are arrested roadside and transported to provide a sample of your breath, always request that a witness come observe your test. You are provided this right and a witness may observe you give your breath sample if they are able to get to the testing site fast enough. In no case will the testing procedures be delayed more than 30 minutes when you request that a witness come observe your test. If, however, a witness arrives in time to see your test, and is denied the ability to come watch you blow, you may have established a defense as your rights may have been violated. Requesting a witness may also provide you with a little more time to try and sober up. If you are on the cusp of a .08, time is important.
If you suffer from gastroespphageal reflux disease (GERD), and this affected you ability to provide an adequate breath sample, you also may be able to establish a defense against your DWI charge. Burping before your breath test, or digestive conditions, such as GERD, may lead to the presence of residual mouth alcohol. Residual mouth alcohol occurs when alcohol you have digested is burped up into the mouth. Residual mouth alcohol will substantially alter the results of any breath test that you submit to. It is important to note if you suffer from digestive conditions or remember burping before providing a breath sample.
If you are arrested for DWI, you are processed through jail and released as fast as possible. This is because you have the statutory right to seek an independent chemical analysis upon your release. After being released, you may go to a hospital or other alcohol testing facility and pay to have your own independent alcohol test. You may use the results as evidence of your alleged BAC. If possible, do seek to go to a hospital to get an independent blood alcohol test immediately upon your release. Although this may only serve to confirm the results taken by the police, at least you have an independent test that may prove your BAC was lower than the state is alleging. Also be sure to note if you aren't released soon after your arrest and subsequent testing. This may set the grounds for a defense for a Knoll Motion. If you aren't released soon after your DWI arrest, you aren't able to seek your independent chemical analysis, and thus you were deprived of your statutory rights.
As with any legal issue, it is important to document exactly what happened to the best of your recollection as soon as you are able to. This will help strengthen your defense. Ultimately, it is your decision as to what is best for you if you have been stopped by the police and having been drinking. If you do drink before you drive, even the occasional one or two drinks at a social event, you need to be educated as to your rights so you are able to make an informed decision. I can't advise you directly whether you should take a specific test or not. I will say, based on over a thousand DWI investigations and hundreds of DWI arrests, it is usually best to avoid admitting to anything, avoid taking any tests, and avoid saying much at all. The best strategy is to be polite, respectful, and assertive as to your rights.
Contact Adkins Law if you need to speak to a DWI attorney / DUI attorney. A DWI lawyer from Adkins Law will be happy to give you a free DWI consultation. Adkins Law offers DWI representation in Huntersville, Cornelius, Davidson, Charlotte, Mecklenburg County, Iredell County, Gaston County, Cabarrus County, and the Lake Norman area.