By Adam Justinger, Attorney, SW&L Attorneys
As a criminal defense attorney at SW&L Attorneys, the most common question I get asked outside of work is “What should I do if I get pulled over after drinking?” This is a valid question. However, the answer is far more complex than one might think. There are many factors and scenarios that must be considered. If you take away one piece of information from this article, it should be to ALWAYS request to speak to an attorney when you encounter law enforcement.
DUI laws are complex and ever-changing. North Dakota’s DUI laws are found under N.D.C.C. 39-08-01. When people think of DUI they generally think that an individual blew over a “.08.” However, this is only one of the five ways an individual can be charged with a DUI in North Dakota. Under state law, an individual can be charged with driving or being in actual physical control of a vehicle if: 1) they have an alcohol concentration of .08 or more within two hours of driving or actual physical control of a vehicle; 2) the person is under the influence of intoxicating liquor; 3) the person is under the influence of any drug or substance or combination of drugs or substances that renders that person incapable of safely driving; 4) the person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving; or 5) the individual refused to submit to a chemical test of their blood, breath, or urine.
In order for law enforcement to stop your vehicle, they must have a reasonable articulable suspicion that a crime has been or is being committed, unless an exception applies. For example, a simple traffic violation could support the seizure of your vehicle. Generally, this is how law enforcement makes contact with a driver. Generally, law enforcement also takes into account the time of day, the day of the week, and the overall driving behavior. During a DUI investigation, law enforcement conducts a three-phase detection process.
Phase One: Vehicle in Motion
Phase One is known as “Vehicle in Motion.” During this phase, law enforcement makes initial observations of the vehicle, the stop, and the driver. Law enforcement is trained to look for a variety of different clues. These can include traffic violations, whether the vehicle stops appropriately, has varying speeds, fails to use its signal, fumbling of driver’s license or registration, difficulty exiting the vehicle, difficulties with motor vehicle control, balance problems, etc. This is a non-exhaustive list but it describes a multitude of different observations a law enforcement officer is making during the stop.
When driving a motor vehicle, it is always recommended to obey all traffic laws. This should reduce your contact with law enforcement. However, if you are stopped by law enforcement, it is important to stop promptly, in a safe manner/location, and to use the appropriate procedure/signals. It is also important to properly provide your license, registration and/or insurance when requested. If the officer is going to detain you and have you exit the vehicle, be mindful of your balance and how you exit the vehicle. Although there are innocent explanations for some of these clues, law enforcement generally will attribute these observations to impairment.
Phase Two: Personal Contact
Once the stop is complete, an officer moves on to phase two of his investigation. During this phase, law enforcement is trained to use their sense of sight, hearing, and smell. Using their vision, officers will look for certain clues such as bloodshot eyes, alcohol containers in the vehicle, or soiled clothing. They will use their hearing to try and determine if you have things such as slurred speech, you admit to drinking, or you have inconsistent responses. They will then use their sense of smell to try and observe an odor of alcohol, drugs, or other cover-up odors. During this phase, law enforcement may also ask for some non-standardized field sobriety tests and may make further observations of how you exit your vehicle.
Again, it is important to remember that many of these observations can have innocent explanations. However, if a law enforcement officer has a reason to believe you have consumed alcohol or drugs, they will likely attribute these observations to impairment. Thus, it is important to remember your rights. One of the most important rights during this time is your right to remain silent. You do not have to answer incriminating questions from law enforcement. Admitting to the consumption of alcohol or drugs could be used against you; even if it is only one drink. Admitting to leaving a bar could be used against you. So, exercise your constitutional right to remain silent until you have a chance to consult with an experienced criminal defense attorney. You can request an attorney at any time. However, because you are not generally under arrest during this phase, law enforcement generally disregards the request. Nevertheless, it is still a good idea to request an attorney as early as possible. This is a fundamental right for all citizens. An individual also does not have to submit to non-standardized field sobriety tests. These tests are voluntary and will generally be used against you.
Phase Three: Pre-Arrest Screening Test
The last phase is known as the PreArrest Screening Test. During this phase, law enforcement will generally ask for three standardized field sobriety tests (SFSTs). The SFSTs are: 1) the Horizontal Gaze Nystagmus (HGN) test; 2) the Walk and Turn (WAT) test; and 3) the One Leg Stand (OLS) test. The HGN is designed to look at a driver’s eyes to determine if there is nystagmus. Nystagmus is the involuntary jerking of the eyes which can be caused by alcohol or some drugs. However, nystagmus can also be naturally present in some people or it could be caused by an injury or physical ailment. During the HGN, law enforcement is looking for six clues of impairment. The WAT is what most people know as “walking the line.” In this test, the officer will begin by giving you instructions and ordering you into a specific position. They will then ask you to walk in a straight line for nine heel-to-toe steps before making a specific type of turn and walking nine heel-to-toe steps back. There are eight possible clues for the WAT. The last SFST is the OLS. This test requires an individual to stand on one leg for approximately thirty seconds while counting out loud. There are four clues officers look for on the OLS.
The most important thing to remember about the field sobriety tests is that they are VOLUNTARY. There is no penalty if you refuse them. However, if you participate in the field sobriety tests, they could be used against you throughout the investigation. If you are being investigated for a DUI, it is in your best interest to politely decline testing to avoid incriminating evidence from being discovered and used against you.
One other test that is conducted during this phase is the preliminary breath test (PBT). The PBT is a roadside breath testing device. Due to its reliability concerns, the PBT is not generally admissible in court. Prior to administering the PBT, an officer has to check your mouth and wait three minutes before administering the test. The officer should then read the North Dakota Implied Consent Advisory for the PBT. This will advise you that refusal to submit to the test can result in your license being revoked for a minimum of one hundred and eighty days or up to three years. However, it is not a crime to refuse the PBT.
Although the PBT can have repercussions for your driving privileges, a driver in most cases will be allowed to “cure” their refusal of the PBT by submitting to a chemical test. As such, it is generally a wise decision to decline the PBT to avoid the evidence being used against you and in support of an arrest.
After the three phases, the law enforcement officer needs to make a decision. The officer must determine whether he has probable cause to arrest the driver for DUI. If a driver is arrested, they will generally be handcuffed and placed in the rear of the patrol vehicle. After being arrested, it is imperative that you request to speak to an attorney. It is also important to continue to remain silent until you consult with an attorney. The Criminal Defense Group at SW&L Attorneys, offer free consultations and is generally available 24/7. After an arrest, law enforcement will generally transport an individual to jail or a hospital for a chemical test.
After an individual is arrested, an officer will request a chemical test. This can be a test of your breath, blood, or urine. Prior to requesting a chemical test, law enforcement must read the North Dakota Implied Consent Advisory. This advisory informs the driver that North Dakota law requires them to take the chemical test and that if they refuse, they could have their license revoked for a minimum of one hundred and eighty days and up to three years. It is also important to know that refusal to submit to a chemical test is a crime.
The testing procedure is different depending on what type of chemical test law enforcement requests. If they request a breath test, courts have stated that a warrant is not necessary. However, if law enforcement requests a blood or urine test, a warrant is required unless an exception applies (such as consent). It is important not to consent to a blood or urine test without a warrant.
After the implied consent advisory is read, law enforcement will ask you if you consent to taking the test. Prior to answering this question, invoke your right to an attorney. In North Dakota, you must be provided with a reasonable opportunity to consult with an attorney if requested. This request must be clear, unambiguous, and after an arrest. After receiving advice from counsel, the decision to take the chemical test is yours. If you cannot get ahold of an attorney after a reasonable period of time, you will need to make the decision on your own. Refusing the test is a separate crime and may result in a revocation of a person’s driving privileges. If you submit to the chemical test, your license may be suspended.
It is important to note that if you submit to law enforcement’s chemical test, you have the right to your own independent test. Like your request for an attorney, remember to make a clear and unambiguous request for the independent test. Law enforcement must provide you with a phone to make these arrangements. Although independent testing is at your own expense, don’t let this stop you from exercising your right.
If you are charged with DUI, it is important to contact an experienced criminal defense attorney as soon as possible. In DUI cases, not only are there criminal penalties, but there are also administrative/civil penalties associated with the DUI. In North Dakota, an individual only has ten days to request an administrative hearing or they will automatically lose their driving privileges. Additionally, due to the complex nature of DUI laws, it is always advisable to have an attorney look over the facts of your case to ensure that your rights are protected and proper procedure was followed.
In short, if you are stopped for DUI, remember to exercise your rights. Invoke your right to remain silent and don’t incriminate yourself by making admissions you will regret later. Request an attorney early and often, especially after you are placed under arrest. Do not take voluntary field sobriety tests. These tests can only hurt you and there is no penalty for refusing them. If a PBT is offered, you can refuse and should be able to cure that refusal with a chemical test. Prior to submitting to a chemical test, talk to a lawyer. If a blood/urine test is requested, ensure that the officer has a warrant. If you submit to a chemical test, request your own independent test. Lastly, never consent to a search of your vehicle, person, or home without a warrant. DUI’s can have both short-term and life-long consequences. Know your rights. If you are being investigated for DUI or you are charged with DUI, feel free to contact SW&L Attorneys at any time.