If you ever get pulled over for DWI in the State of New York, follow these simple guidelines to improve your chances of beating the case or at least minimizing the severity of the charge:
TIP #1: Minimize your Cooperation with Police
When you’ve been pulled over for suspected drunk driving, remember that (1) you are being investigated for a serious crime, (2) anything you say and do WILL be used against you, and (3) the investigating officer is NOT your friend. So, forget about trying to be the police officer’s friend – you can do that on another occasion, when you are not the target of an investigation.
- TALK AS LITTLE AS POSSIBLE. Remember, the police officer is trying to gather evidence to use against you. The less you say, the better off you are. You also will smell less of alcohol if you are not talking.
- DON’T CONFESS that you’ve been drinking! Just say that you are sorry but that you are not going to give a statement. Period. Try not to talk at all, actually, because the arresting officer is just going to say that your speech was slurred and your breath smelled like alcohol. If you can, just keep your mouth closed and say nothing. What you don’t say can’t hurt you.
Tip #2: Have Your Car Documents in Order
- YOU CAR SHOULD ALWAYS BE PROPERLY REGISTERED, INSPECTED, AND INSURED. Obviously, you can avoid an initial stop if you are not driving a beat-up car with no insurance and a suspended registration.
- HAVE YOUR DOCUMENTS READY. You can do this beforehand. Why not have your registration and insurance cards in a place that they are easy to find? When you get pulled over, you don’t need to be drawing attention to yourself as you fumble around your glove compartment looking for your documents.
Tip#3: Don’t Take any Field Sobriety Tests
FIELD SOBRIETY TESTS ARE NOT MANDATORY, AND YOU WILL NEVER PASS THEM. Unlike the breath screening test, the field sobriety tests (standing on one leg, reciting the alphabet, looking at the pen) are not mandatory under New York State law, although the police officer may try to scare you into taking them. Just shake your head and refuse to take them. I’ve never seen anybody pass these tests, and again, they are not being used to see if you are sober. They are just being used to give the police officers more reason to arrest you and show how drunk you were. Be nice, but refuse the tests. The less evidence the police officer has to use against you, the better.
Tip #4: Take the Breath Test
TAKE THE BREATH TEST. This one you don’t have a choice about. There will be two breath tests given to you, one at the scene of the arrest (the screening test) and one at the police station after your arrest (the blood alcohol content test.) You really do have to take these, because under New York State law, your license will be automatically suspended for a year if you refuse to take the test. The only reason to refuse to take this test would be if you were very drunk and you are sure that your breath alcohol content (BAC) is going to be super high, and you don’t mind losing your license for a year. If that’s not the case, then you should take the breath test.
Tip #5: Be Nice
BEING NICE IS ALWAYS A GOOD IDEA. There is no reason to be disrespectful or rude. Just stick to your guns and refuse to give a statement and refuse to take the field tests.
Tip #6: Tell the Police you Don’t Want to Answer Any Questions and Say You Want to Speak to an Attorney
THE FIFTH AMENDMENT AND MIRANDA. Under our federal and state constitutions, you are not required to confess to a crime or testify against yourself. (Fifth Amendment to the U.S. Constitution) Additionally, per
Miranda v. Arizona, 384 U.S. 436 (1966) and New York caselaw, once a defendant has told the police officers that (1) he wants a lawyer, or (2) that he wants to remain silent, the POLICE QUESTIONING MUST STOP. Any statements obtained by the police after you have invoked your right to counsel or your right to remain silent will be suppressed and cannot be used by the prosecution against you. People v. Wilson, 28 NY3d 67 (2016).2
I hope these tips have been helpful to you. If you’ve been arrested for DWI, you should consult a criminal defense attorney, like me, to see what your options are.