Back to all articles
St. Patrick’s Day is one of the leading holidays when it comes to DWIs and accidents, and with one-third of all vehicle-related fatalities in the U.S. being attributed to drunk drivers, it is to no one’s surprise that law enforcement will be keen on pulling over anyone that may show signs of intoxication this holiday season. Unfortunately, for many, the process of getting pulled over is not a comfortable experience and oftentimes leaves many wondering as to what their rights are in regards to their interaction with the officer that pulled them over. It is crucial to be aware of your rights, such as whether or not to comply with certain requests by law enforcement. If you do not know your rights, you may end up putting yourself in a worse legal situation.
One of the most important things to understand is that law enforcement will not pull you over randomly for a field sobriety test. As with all traffic stops, you have to commit a traffic infraction for a police officer to pull you over. Simple things like speeding or swerving in and out of lanes give law enforcement the go ahead to pull you over and potentially catch you driving under the influence. Another reason for law enforcement to pull you over is if they think you are driving distracted. When being pulled over for distracted driving, there are two main charges: driving while using a mobile telephone and operating a motor vehicle while using a portable electronic device. These two charges encompass any sort of electronic device that could distract your focus from the road, even if you are talking with the phone on your lap or punching something into a portable GPS. The best strategy I propose to prevent yourself from being pulled over is to invest in a holster for your device and always use Bluetooth if you are going to talk on the phone while driving. If your device is secured to the car, you will not be pulled over for using a mobile telephone or operating a motor vehicle while using a portable electronic device.
Along with needing a reason to pull you over, the law enforcement officer will need probable cause to conduct a field sobriety test. Things such as the smell or presence of alcohol or other drug paraphernalia will usually lead to them conducting one of these tests. If they are still convinced that you are under the influence after the tests, they may administer a preliminary breath test (PBT). While this isn’t the breathalyzer test they will use against you in court, this test, along with others, is the officer’s way of trying to establish probable cause to make a DWI arrest.
You are not required at any point to participate in these tests. You are also not required to speak with a law enforcement officer at any point without your attorney present. While you are not required to participate in these tests, however, being compliant with the officer will help you more often in the court of law. If you have not done anything wrong and you comply with the officer’s instructions, the burden ultimately rests with the prosecution in court to prove that you were in fact driving under the influence.
It is not recommended, however, that you refuse to take a chemical test since it will lead to an adverse inference being made against you in court. You can still be charged with Driving While Intoxicated without a certified chemical test showing your blood alcohol content (BAC). This is normally referred to as a “common law” DWI, a violation of Vehicle and Traffic Law Section 1192-3.
Along with not being legally required to perform certain field sobriety tests, the police are also not allowed to search your car without a search warrant. This, however, can be circumvented if items such as drugs or firearms are in plain view or if the officer claims he or she detects an odor of alcohol or an illicit substance. If there are items such as these lying in plain view of the law enforcement officer, they can search through your car, potentially finding other illegal items.
It is paramount that you know your rights and protect yourself in a situation in which you find yourself facing a DWI, DWAI, or traffic stop in general. You are under no obligation to talk to law enforcement without an attorney present. The moment you start talking in a situation in which you are in police custody is the moment you start telling on yourself. With the consequences of a DWI ranging from license suspension to a misdemeanor (or felony for repeat offenses), knowing your rights and having counsel that understands the intricacies of criminal and traffic laws is essential.
As a Partner at Tully Rinckey PLLC, Derrick Hogan, Esq. primarily focuses his practice on criminal defense and heads the Firm’s Criminal Practice in its Albany Office. With more than 10 years of experience in the area of Criminal Defense, Derrick has represented clients facing all types of criminal charges, at both the State and Federal level, ranging from simple traffic infractions to complex murder cases. He can be reached at or at (518) 556-2249.