What should I do if I see a police officer who has activated his emergency lights ?

What you should NOT do

Do not continue to drive if a police officer is behind you with emergency lights activated.

Do not pull your vehicle over in the middle of traffic.

Do not pull the vehicle over near a center median.

Do not roll down your window entirely.

Do not be argumentative or impolite.

Do not cry or become emotional.

Do not beg or plead for leniency.

Do not laugh or find humor even if the arresting officer is doing so.

Do not try to explain what you were trying to do (e.g. swerving to get out of the way of some other vehicle or speeding to a location where it was safe).

Do not try explain the present status of your license (e.g. you already have points on your license and cannot afford another ticket).

Do not hand the police officer a wallet or billfold with you license, registration and insurance card buried in it and expect him/her to dig it out.

Do not try to impress the police officer with the fact that you might know another police officer.

Do not volunteer information that you were coming from a bar. Do not argue that you know your "rights."  Do not demand to be read your "rights."

Do not volunteer information about what you were drinking or how much.

Nor should you volunteer information that you just came from a bar or night club.

Do not attempt to perform standardized field sobriety tests in high heels.

Do not attempt to perform standardized field sobriety tests if you are not given instructions in your native language.

What you should do?

Pull your vehicle over as soon as possible.  Use a turn signal and pull the vehicle over to the right hand shoulder of the road when it is safe to do so.

Remain in your vehicle. Get your license out. Also, get out your vehicle registration and your insurance card. It is probable that you will be asked to produce all three documents.  An officer may make a notation if this process takes you some time and it is sometimes assumed that the delay is due to the motorist being impaired.  Roll down your window an inch or more and wait for the police officer. When the police officer requests the license, registration and insurance card hand all three to him/her through the window.  Generally, the officer will then verify the documents.

Keep your hands were they can be seen at all times.  Understandably, police are concerned for their own safety and do not know if a weapon is in the vehicle.

When officer returns politely ask why you were pulled over.  Speak slowly and deliberately.  Make sure that your responses are clear.  Make sure that you answer the question asked.  Politely respond to any questions about safety or the direction you are traveling.  At the same time, do not make any admissions that you consumed alcohol or how much. 

If you are directed to step out of the vehicle, politely indicate that you would be happy to perform tests but you would like to speak to your lawyer first. Then tell the officer the name and telephone number of your lawyer.  Some police officers will allow you to speak with your lawyer.  Others will not.

If you are then directed to perform standardized field sobriety tests make sure you understand the instructions clearly before you begin.  If you do not understand some aspect of what you are being asked to do ask for clarification.

Do I have a right to contact an attorney when I'm stopped ?

The answer depends upon what phase of an arrest you are at.  Therefore, you have a qualified right to an attorney.  If you are in custody and you are being interrogated clearly you have the right to seek counsel.  However, in the context of a DWI arrest most of the questions are asked when the motorist is stopped for a routine traffic infraction.  The motorist is not at that point in custody, the officer is conducting an investigation and therefore you may not be entitled to have an attorney present.

While it is advisable to be courteous to all law enforcement officials, it is advisable for the driver to slightly roll down the drivers window, provide proof of a drivers license, registration, and insurance. When asked to respond to specific questions about what the driver had to drink, how much and when, the driver can invoke his right to counsel by specifically requesting that the law enforcement officer contact his lawyer at that time. An attempt must be made to contact your lawyer and interrogation and balance testing must cease until an attempt to contact that lawyer is made.

What should I do if I'm asked to take a field sobriety test ?

The answer to this question depends on many factors. If you have not had any alcohol then you should volunteer to perform the field sobriety tests. If you have had one drink, the answer is maybe. If you are of average or large build, you are athletic, have good balance and believe you possess excellent coordination skills then you might consider agreeing to perform the tests. If you are a petite, and lack balance or coordination skills, you should request to speak with your lawyer before volunteering to perform any tests. If you have had more than one drink, you should ask to speak with your lawyer before performing any tests.

Should I agree to take a chemical test ? What happens if I don't ?

Chemical testing is often a hurtle that many law enforcement officers, prosecutors and judges view as being the ultimate litmus test for determining if a driver is in fact intoxicated. The chemical testing machines are in fact fallible and need regular repair and maintenance. In addition, while most law enforcement officers are trained in using these machines they can make mistakes as well. It is therefore advisable that you consult with your attorney prior to volunteering to take a chemical test. If you refuse to take a chemical test the police officer will document your refusal and your license will be revoked at arraignment. The court will notify the Department of Motor Vehicles and they will give you notice of a hearing within fifteen days to address the revocation of your license.

What if I'm not read my rights?

The accused frequently is astonished by the fact that they are read "warnings" when they are being booked at the police station or after they have been processed and are about to be released.

Such "rights" commonly refer to are the warnings governed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).  While the decision speaks for itself, in summary, Miranda warnings must be read to a driver who is placed in custody when further questioning is needed.

In the context of a DWI case, motorists don't understand why they are not read these Miranda warnings when they are stopped.  A crude answer is that much of the questioning is done during the investigation of the stop and prior to the driver being placed in custody. Therefore, law enforcement officers do not have to read the Miranda warnings during this initial phase.  If the driver is not in custody and is being asked questions during investigation the law enforcement officer is not required to read the Miranda warnings. This investigation phase begins when the motorist is stopped and continues until he is in custody.  

Therefore, the motorist must be careful about what is said.  Certainly anything that is said or done by the motorist can and will be used by law enforcement in the prosecution of their case against the driver.  Consequently, a driver is not obligated to offer any incriminating statements.  In the context of a DWI arrest this means the motorist is not obligated to state whether alcohol was consumed and in what quantity.  Nor is he or she obligated to state where he or she is coming from if it happens to be a restaurant that has a license to serve alcohol.  That fact can be used against you.

Am I presumed innocent?

Recent changes in the DWI laws and the well funded anti DWI campaigns have placed pressure upon law enforcement to arrest "drunk" drivers to the extent that it has placed the average motorist who has consumed any alcohol in a perilous situation. Today, if a driver consumes any alcohol and is operating a motor vehicle he places himself at risk for being arrested for violating New York's vehicle and traffic laws.

While we at the Wisner & Wisner, LLP do not advocate drinking and driving we believe the message given to the public misleading.   Although noble in their efforts to make our roads safe, the message of special interest groups is that drinking and driving is against the law.  In fact, drinking and driving is not "against the law."  Repeat, drinking and driving is not "against the law."  In New York, driving while intoxicated is against the law.  Meaning, it is entirely legal to have a glass of wine with dinner.

Secondly, the federal government has forced the hand of state legislative officials to lower the blood alcohol content (BAC) or risk losing millions of dollars of federal highway funds.  As a result, states such as New York, were forced to drop their blood alcohol level to .08.  This was done without clinical studies to show whether a motorist could operate a motor vehicle as a reasonably prudent driver with a .08 BAC.  The effect has been to cast a net over those who have consumed alcohol and are found driving.  Both those intoxicated and those not intoxicated are arrested.

Field sobriety testing is often confusing and difficult to master for the average driver with no experience in the many ways it can be determined that he "failed." That, coupled with an odor of alcohol, can place a motorist who believes he can operate a motor vehicle as a reasonable and prudent driver in a foreign situation and all too often must defend his sobriety in court. As such, the presumption of innocence in this area of law is frail and it is advisable to not drink any alcohol if the motorist plans to drive.