28 Apr

What to do when you see blue

You have been friends since college, every Saturday evening the five of you get together at someone’s home for dinner and a movie. Every one brings a different bottle of wine. After helping pick up, you head home around 1:00 a.m. Your house is only a couple of miles away. You feel tired, but certainly not drunk. Over three hours you only had three glasses of wine and ate a light meal.

As you approach a four way stop, you note that no one else appears to be on the road. You slow, look all ways, but never come to a complete stop. You precede through the intersection and within moments notice a blue flashing light behind you. Surely, he is not after you! He is; he flashes his headlights and activates his siren as he pulls in behind you. You pull your vehicle to the side of the road. Now what?

Although you do not realize it, you are under suspicion for Operating a Vehicle Under the Influence of Drugs or Alcohol – OVI. Notice, that the words drunk or intoxicated do not appear in this title. It is important to note the difference between driving drunk or intoxicated and driving under the influence. The OVI law is designed to protect the motoring public. Driving while under the influence or impaired poses a risk to public safety. One can be impaired without being drunk.

It is late in the evening on a weekend, and you have just failed to stop at a stop sign; cops are patrolling for impaired drivers, and you just fit the profile. He has probable cause to stop and detain you because you violated a traffic law by not coming to a full stop at the intersection. Now he is going to take this opportunity to see if he can make an OVI arrest.

The officer walks up to your window, says good evening and asks for your license, registration and proof of insurance. His investigation has begun. You must be aware that everything that you say or do at this point will be used by the officer, and perhaps a prosecuting attorney to convict you of OVI. Almost all police cruisers are equipped with “cruiser cams” that will provide a video and audio record of everything that occurs. What do you do to protect yourself?

The documents the officer just asked you for are probably stuffed in the glove box, console, and/or your purse or perhaps not even in your vehicle. You attempt to locate the papers, but because a police officer is staring over your shoulder and you are uncertain of their exact location, you have trouble producing them. Later the officer’s report will indicate that the suspect “in response to officer’s request to produce her license, registration and insurance appeared nervous, and confused, and fumbled while attempting to retrieve the requested items.” The solution: keep these documents in one place in your vehicle, where they are easily accessible to you in the event of a stop.

The officer then comments “your eyes are blood shot and I believe I smell alcohol, have you been drinking? For goodness sake, do not respond, “Officer I only had a few.” This phrase is an occupational joke among cops, lawyers and prosecutors because it is uttered so often by those under suspicion for impaired driving. By uttering this phrase, you are basically admitting guilt. You are not required to give the officer any response. Certainly, you want to be polite, you just do not want to help him convict you of this serious offense. Simply stated, the less you say, the better your chances of avoiding a conviction.

He will next ask you to exit your vehicle. Do so carefully; he will note if you stumble, grab the door for balance or any other indicator that you are unsteady on your feet. If you cannot exit gracefully, then respectfully decline to do so.

He then will tell you that he wants to administer a series of Field Sobriety Tests. Typically these include the one-legged stand, the walk and turn, and the horizontal gaze nystagmus examination. The latter of these tests involves having the subject follow an object, typically an ink pen, with the eyes while not moving the head. In many instances, when one is impaired the pupils will bounce (nystagmus) during this activity. This can be a reliable indicator for impairment, but other conditions can impact the test. Some people, for example, have medical conditions that cause nystagmus.

The one legged stand test and walk and turn seem simple enough. They are not. They are activities that you do not typically engage in. You are nervous. You may be on uneven pavement. The weather may be bad. Perhaps you have a physical impairment such as a bad knee. Unless you are an Olympic gymnast, you will almost surely fail these tests, and be one step closer to being convicted of OVI. Again, politely decline to participate in these activities.

At this point, the officer will want to take you for a chemical test of the alcohol content in your blood, breath or urine; most likely a breath test. There is no penalty for refusing to take the field sobriety tests, however if you refuse to take a test of your blood, breath or urine, your license will be suspended by the Bureau of Motor Vehicles. However, a conviction for OVI also carries a license suspension, and many other serious penalties. Additionally, sometimes the suspension for refusing the test may be successfully challenged.

A relatively small amount of alcohol consumption may result in an over the limit test result. The level of concentration is going to be effected by factors such as height and weight, length of time since drinking, and amount of food consumed with the beverages. If you are very, very confident that you will pass the test, then take it. If you have any doubt, refuse.

OVI is a serious offense. Following the above advice may help you avoid a conviction. If you are charged, your first step should be to contact an experienced, skilled attorney who will fight for your rights. The stakes are too high to go it alone.

Please consult an attorney for advice about your individual situation. This site and its information is not legal advice, nor is it intended to be. Feel free to get in touch by electronic mail, letters or phone calls. Contacting us does not create an attorney-client relationship. Until an attorney-client relationship is established, please withhold from sending any confidential information to us.

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