The Constitution gives you the presumption of innocence until you are proven guilty. It also gives you the right not to be arrested unless an officer has probable cause to believe that you have committed a crime. Without probable cause, an officer cannot arrest you.
Every day, police pull people over and investigate drivers they think may be intoxicated. Police are trained to tell you, “I just need to evaluate you to make sure that you’re OK to drive” in an effort to get you to perform the field sobriety tests. This is a tricky statement, because drivers read a lot into this statement, most of which is not true. The police use it precisely because they want you to make these false inferences.
First, drivers think that they must perform these tests. Most officers don’t inform drivers that they do not have to perform the field sobriety tests. In fact, you should not perform the tests. If an officer does not have probable cause to arrest you for DWI, then you are free to go. If the officer has probable cause to arrest you for DWI, then you are going to jail. An officer can use a refusal to perform the field sobriety tests as an indication of intoxication. I have seen enough people who have no alcohol or drugs in their system do poorly on field sobriety tests, that I would recommend never performing the tests.
Second, drivers think that if they perform the tests, they will be free to go. In reality, an officer must have some belief that you are DWI before they can ask you to perform the tests. They are having you perform the test, because they believe that you will do poorly on the tests and they are trying to bolster their case against you, so that they can arrest you. In fact, every one of my clients who has been arrested for DWI and blood/breath results showed that they had no alcohol or drugs in their system, have failed the field sobriety tests.
Third, drivers think that they must prove to the officer that they are ok to drive. The opposite of this is true. The driver has no burden of proof. If the officer cannot prove to a certain extent (probable cause) that you are intoxicated, he cannot arrest you and you get to go home. If you perform the field sobriety test and the officer thinks that you do poorly enough, then you are going to jail. It doesn’t matter how many mistakes he makes in administering the test, you’re going to jail.
So what should you do if an officer tells you he wants to make sure that you’re ok to drive. We know that refusing to perform the field sobriety tests is an indication that you are intoxicated, so you need to avoid doing the tests without refusing to do them. You need to tell the officer two things: first, tell the officer that you demand to speak to an attorney to advise you whether or not to perform the test, second, tell the officer that you are going to remain silent (which you have the right to) and then do not say anything else. If the officer has probable cause to arrest you for DWI, he was going to arrest you anyway and now the government has less evidence to show that you are guilty. If he does not have probable cause to arrest you, then you get to go home.
If you have been arrested for DWI, it’s important to talk with me as soon as you can. The earlier we discuss your case, the more effective of a defense we can put on. Call me at 210-900-2806 to set up a free consultation or click here to schedule a consultation.