Frequently Asked Questions

Your Rights

What am I required to do, say, or provide when I am pulled over?

You will be required to provide your license and registration. You are not obligated to provide any details about your day. Ex: Where you are coming from, where you are going, what you have had to drink, how much you have had to drink, when you consumed that alcohol, what your last meal was, how often you drink, etc.

Often times the officer already smells the alcohol on your breath, and is only looking to build his case against you.

Most importantly, always be polite and courteous when you are pulled over, even if the officer isn’t being friendly toward you. If the officer asks you to step out of your car, you should comply.

You do not have to perform any standard field sobriety tests (Which you can read about in more detail here). You do not have to take any breath test at the scene or back at the station. You do not need to consent to a blood test. If the officer gets a warrant to take your blood, at this time, you can express that you do not consent to the blood sample being taken, but comply and allow the nurse/ phlebotomist to draw your blood.

Often times people feel they have to consent to road side tests, breath tests, or blood tests or else they will get into more trouble. That is not necessarily the case. How you refuse the officer’s tests and questioning can make all the difference. It is okay for you to politely tell the officer you do not feel comfortable with any balancing tests, you would prefer the officer get a warrant before drawing your blood, and you would like to speak to your attorney before answering any questions. The scenario would likely play out much differently if you have an attitude with the officer, try to leave the scene, or physically resist the officer when he is trying to place you under arrest.

Be polite, but know your rights!

What are the Standard Field Sobriety Tests and how accurate are they?

There are 3 tests an officer will usually ask you to perform: The Horizontal Gaze Nystagmus (HGN), the Walk and Turn, and the One Leg Stand. These tests were created and standardized by the National Highway Traffic Safety Administration (NHTSA).

Horizontal Gaze Nystagmus (HGN) -
During the Horizontal Gaze Nystagmus test, the officer will ask you to stand with your feet together and follow a stimulus (a light or a pen) with only your eyes, and without moving your head. I hear all too commonly that people think the way to pass this test is by not moving their head. Unfortunately, that is not what the officer is looking for. The officer is looking for a small involuntary jerking motion in your eyes which is caused by a CNS depressant such as alcohol.

This jerking cannot be felt by the person taking the test. Without going into too much detail, the officer is looking for a total of 6 clues of intoxication during this test. If the officer observes 4 out of the 6 clues, then the police will determine you are intoxicated.

However, there are many issues with this test both at the scene and in trial.

  1. The HGN test must be administered correctly or the results can be invalidated. Often times, the officer does not give the test properly as required, but will testify he saw 6 out of 6 clues of intoxication anyway. A knowledgeable DWI attorney will recognize the problems with the way the officer administered the test during or prior to trial, and argue to have the HGN test thrown out of evidence before the jury hears this damaging and prejudicial testimony.

  2. Some people have natural nystagmus. Without the officer knowing whether or not you have natural nystagmus without consuming alcohol, he cannot know whether you are even a good candidate for the HGN test. Certain injuries and conditions can cause this jerking in a persons’ eyes; for example, head injuries/ concussions, neurological diseases, or certain eye issues can cause eyes to jerk even if the person has not had any alcohol.

  3. The eye movements the officer is looking for are very slight. The officer’s dash camera which is filming the test will not show a person’s eyes. Therefore, these results cannot be shown in the court room for the jury to see. This means we are forced to accept the officer’s subjective memory of the test, which likely took place 6 months to a year ago. Knowing their finding cannot be refuted, officer’s almost always find 6 of 6 clues on this test.

  4. Also, certain environmental factors can cause the eyes to jerk i.e. flashing lights during heavy traffic on the side of the freeway or from the officer’s flashing lights on his car.

Walk and Turn Test -
The walk and turn test is one of two divided attention tests. Although people presume this to be a simple “walk in a straight line” test, it is actually far more complicated than that.

There are a total of 8 clues the officer is looking for on this test. The officer is looking for 2 of these clues before he even tells you to begin the test. It only takes 2 of 8 clues for the officer to make the determination that you are intoxicated. You can fail the test before you have taken your first step.

The officer starts by giving you instructions. He will ask you to stand on a line with your left foot in front of your right, touching your heel to your toe, and with your arms down at your side. Once you are in this position, he should tell you not to move from this position until he tells you to begin.

He should then explain that once you are instructed to begin the test, you will take 9 heel to toe steps down the line (real or imaginary), and on your 9th step, to turn around by taking a series of small steps, and return down the line taking 9 heel to toe steps. He will tell you to count your steps out loud, look down at your feet while walking, and not to raise your arms from your side. Finally, he will tell you that once you start, do not stop.

If you “broke” from the position the officer put you in before he started explaining the lengthy instructions for the test, you have already exhibited one clue of intoxication.

Also, if you started to walk your 9 heel to toe steps before the officer told you it was okay to begin, then you have exhibited another clue of intoxication.

It does not take tripping and falling to fail this test. I have seen many people fail this test sober. The officer does not tell you the factors they are watching for to score your test. Keep in mind some of the clues can be very minor and you don’t get a practice run.

8 Total Clues-

  1. Can’t maintain balance during instructions/ Breaks from the starting position

  2. Begins test too soon

  3. Miss Heel to Toe - You only have to miss touching heel to toe by half an inch

  4. Uses Arms for Balance- Many people simply didn’t catch the officer giving this as one of the many instructions, and naturally they put their arms out straight while walking the line. You only have to raise your arms 6 inches from your side during the entire test to mark this as a clue.

  5. Improper turn- Many people do not turn using the odd “series of small steps” that the officer asked. Simply pivoting or doing an about face will be considered another clue of intoxication.

  6. Taking the wrong number of steps- This one seems common sense. However, I have had people tell me that they thought it would help them to do more steps than the officer required of them. Unfortunately, this is counted as another clue of intoxication.

  7. Stepping off the line- Even if the officer asks you to imagine a straight line, and no such line actually exists, the officer can still determine you stepped off said imaginary line and list it as a clue of intoxication.

  8. Stopped While Walking- If you stop at anytime during the test, the officer can mark this as a clue of intoxication. Even if you are merely stopping to ask the officer for clarification or to ask a question, it can be counted against you.

There can be many other factors that could affect your performance other than intoxication: natural balance and coordination, the shoes you are wearing, injuries, anxiety, age, weight, language barrier, etc.

As you can see, this test is far more complicated than just walking in a straight line to show the officer you are not drunk.

One Leg Stand-
The instructions for the One Leg Stand are a little less convoluted than the Walk and Turn test.

The officer will tell you to:

  1. Stand straight with your feet together with your arms down by your side.

  2. Not to begin until you are instructed to

  3. After you are instructed to begin, lift one leg of your choosing

  4. Keep the leg lifted about 6 inches parallel to the ground

  5. Keep both of your legs straight and look down at your foot.

  6. Count out loud in the manner described (one thousand 1, one thousand 2, one thousand 3)

  7. Continue until he tells you to stop. The officer will use a timer and require the person to stand on one leg for 30 seconds.

The officer is looking for a total of 4 clues of intoxication. If a person shows 2 or more clues, the officer will determine the person is intoxicated.

4 Clues-

  1. Sways- It does not take falling or nearly falling. If a person merely sways the officer can mark this as a clue of intoxication

  2. Raises Arms- A person would only need to raise their arm 6 inches from their side to be marked as a clue of intoxication

  3. Puts Foot Down- If you put your foot down at any time during the 30 seconds, this will be marked as a clue of intoxication

  4. Hop- If you hop to maintain your balance within the 30 seconds, this can be marked as a clue of intoxication.

These tests are not easy to perform. It does not take being drunk to fail these tests. An experienced DWI attorney not only understands how these tests work, but have more training and education regarding the SFSTs than the officers do.

Understanding these issues and explaining them to a jury can be vital to your case. Contact Cannon Law today to start preparing your best legal defense in your case

Do I have to perform the Standard Field Sobriety Tests?

No, you do not have to perform the field sobriety tests. They will rarely help your case. Typically speaking, the officer is not trying to give you a way to “prove your innocence” or prove that you are not drunk. Rather, they are looking to build their case against you.

Does the police officer have to read me my Miranda Rights? Will my case be dismissed if he didn’t?

An officer has to read you your Miranda Rights once you are under arrest and before any “custodial interrogation.”

Failure to do so will not necessarily get your case dismissed.

If the officer places you under arrest and does not read your Miranda Rights to you, he can not ask you any more questions. If the officer did ask you questions without reading you your proper rights, your answers might not be admissible against you at trial. It depends on what questions the officer asked you.

This would not include questions verifying your identity (name, date of birth, address, etc.), or any breath or blood test results. The officer reads a separate set of statutory warnings to you before asking for your consent or refusal for a breath or blood test.

In summary, if the officer does not read you your Miranda Rights, your case will not automatically be dismissed, but potentially admissions or confessions might be thrown out of evidence.

Do I have to accept the State’s Plea Offer? How do I know if I should go to trial?

No, you do not have to accept the state’s plea offer, which is typically a permanent conviction. You always have the right to go to trial.

Most of the time if a DWI is not dismissed, my advice IS to go to trial.

Cannon Law always communicates the offers made by the state and the benefits and risks of going to trial. It is important to go through your case with your attorney so you are able to see the best and worst facts and evidence that would be presented in trial. Cannon Law will take you step by step through your case so you feel informed about all of your options.

What is “No Refusal” Weekend? Does that mean I have to consent to give my breath or blood?

On certain holidays or during special events, a city or county can say it is “no refusal” weekend.

That does not mean you HAVE to consent to a breath or a blood test. It merely means if you choose NOT to consent, there will be a judge or magistrate available to give the officer a warrant to take your blood.

Many people ask if that means they should just consent since the officer will be able to get their blood anyway. Click here for a detailed answer outlining that question.

When do I have the right to call my attorney?

Nothing in the law requires the police officer to allow you to call your attorney while you are in their custody. Once you have been arrested and taken into jail, there are typically phones you can use.

Was I being videotaped? How can I get a copy of the video(s)?

Most likely you were being videotaped during most of your encounter.

Most police cars are equipped with a dash camera and were running prior to the officer turning on his lights and pulling you over. Some of the larger police agencies are starting to use body worn cameras in addition to their dash cameras. There is often a back seat camera when the officer is transporting you from the scene, to the jail or hospital. At the police station most of the rooms and holding cells are being recorded. Therefore, any more field sobriety tests done at the station, any breath test, or any blood draw is being recorded.

Your attorney will receive a copy of any video the district attorney has for your case.

Cannon Law does not rely upon the state to provide all of the evidence in your case even though the prosecutor is required to provide it. Cannon Law goes further and subpoenas the agency directly for any evidence in your case, and conducts a scene investigation to see if there is any security footage from surrounding businesses that could help your case. Time is of the essence in this regard, as many video recordings can be lost or deleted as time passes. Contact Cannon Law today for a free consultation.

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