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To illustrate how you should behave when being pulled over, I’ll tell you a story about my daughter, who apparently listened closely to my side of conversations with hundreds of prospective clients. She was driving home one night after a 20-somethings-party, her drunk boyfriend passed out in the passenger seat, when all of a sudden, police lights come on behind her. She pulls over and immediately retrieves her driving credentials from her visor. I always told her it’s best to keep your driving credentials in the visor because it makes it easy to retrieve them, and the cops can see your hands, so they don’t get nervous. Even though I never told her to do so, she takes out her cell phone and hits the audio recording app before rolling down her car window.
The officer says, “Good evening, ma’am. License, registration, and….” Before he can finish asking for her credentials, she has them out for him. Unless he is a liar, he cannot talk about her slow fumbling hand movements.
He then says, “All right, ma’am, I need to ask you some questions.” She says, “Officer, you can ask me all the questions you like, but I won’t be answering any.”
He says, “You have to.” She says, “I don’t think so. May I call my attorney?”
He says, “Oh, do you have him on speed dial?”
“Yes, I do, officer.”
Now, she has done two very important things: (1) She invoked her 5th Amendment Constitutional right to remain silent by simply telling the officer, “I’m not answering any questions.” (2) She invoked her 6th Amendment Constitutional right to consult with an attorney by saying, “Can I call my lawyer?” Of course, on the street, power trumps individual rights every time.
So, what does the officer do? He says, “Get out of the car; walk over there.”
You have to comply because the law is pretty basic. It requires you to do five things:
Not included among those five things is doing balance tests, answering questions, telling the officer you are a taxpayer and pay his salary, etc. Do not do balance tests, answer questions, or engage in unnecessary conversation.
Now, the officer has my daughter behind her car and is giving her directions to do something called the horizontal gaze nystagmus test. The officer has you follow his pen with your eyes while you keep your head still. The officer might also ask you other things like stand heel to toe, walk heel to toe, and stand on one leg. When the officer told her to begin, my daughter says, “On the advice of my attorney, I’m not doing any balance tests.”
As you might imagine, this throws the officer for a loop. He didn’t like what she was doing. She was doing two things to him:
(1) She was violating his expectations. Officers are used to people basically handing them everything they need on a silver platter to justify an arrest and to perhaps persuade a judge that they are guilty of something. The officer has already been thrown off balance by her refusal to answer questions.
(2) She was also frustrating him. Cops do not ask questions or have you do balance tests to help you out or to cut you a break. They are trying to generate information to justify an arrest and get you convicted. She was not giving that to him. You can hear his frustration on the audio recording she took.
I’m sure that my daughter was nervous, but she wouldn’t show it. She tells the officer, “Look, if you’re going to arrest me, I want to call my lawyer, but if you are not, I’d like to go home.” He lets her go.
One point about the way she declined the balance test is interesting. Prosecutors will often argue that you decline to do balance tests because you have a consciousness of guilt. In other words, you knew you were so drunk you couldn’t do them. Of course, that’s one inference they can try to use to persuade the judge or jury of guilt–that you must have been drunk. But that’s only one permitted inference. She set up another inference by saying “on the advice of my attorney….” She is relying on the Constitution to invoke her rights and to enjoy the protections the Constitution provides.
Remember, she was not arguing with the cop. She was not giving him a lecture or telling him what to do. You must follow an officer’s reasonable directions. If you don’t, you can get other charges like obstructing justice or interfering with a law enforcement function. You have to get out of the car. You have to provide driving credentials. You have to submit breath samples. The law requires you to do those things, and if you don’t, there are laws that can lead to you being charged with additional offenses and getting punished.
So, just remember the five things: pull over, give driving credentials, get out of the car, submit to the arrest, and blow into the machine. There are unusual circumstances involving people with multiple offenses where maybe it is more advisable to refuse to submit a breath sample, but for most people (85% of people are first offenders), this is the advice you should follow. Practice safe motoring and don’t drink and drive. But if you do and you get caught, give me a call.
For more information on Conduct at a New Jersey DWI Traffic Stop, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (732) 218-9090 today.