DWI Defense Guru on… Getting Pulled Over

DWI Defense Guru the DWIDude.com (Jamie Balagia) answers some of our questions about how we can judge our level of intoxication without the fancy equipment, what happens when we get pulled over, and what our good buddies the cops are looking for when they pull us over. We drink responsibly when we’re out and we’re planning on driving but we have put DWIDude.com’s phone number in our car and our cell phone anyway. (512) 278-0935

1.How do I know if my blood alcohol level is at or above .08?

DWIDude.com:One way is to go to our website and on the left hand side of the Home Page is a BAC calculator.  The instructions are on the page that you will be taken to once you click on the link.  This is a rudimentary calculation like the police and prosecutors use but it is a close approximation.  For a much better predictor you would have to do a drinking simulation at my office while we drew blood and took breath samples at the same time.  Even then there are deviations that would apply to give a different result than your true BAC.  Not much of answer is it?  That’s because every individual changes in their absorption and elimination factors over a single drinking period and from one drinking period to the next.

A safe estimation is to figure that a “normal”  160 pound male absorbs about 0.020 per 12 ounce beer (Bud, Miller, Coors) and eliminates about 0.015 per hour.  So after drinking one beer per hour an increase in BAC of 0.005 would occur since you are absorbing and eliminating at the same time.  If you increase the amount absorbed then the BAC would be higher since usually the elimination rate stays constant.  (Except that in heavy alcohol dosing situations without eating or an extreme alcoholic person at a high level of intoxication can cause the liver to excrete an enzyme that supercharges the elimination rate.)  A simple example is if you drink three beers per hour (0.06 per hour) for three hours (0.06 x 3 = 0.18) and you eliminate the 0.015 over the three hours (0.015 x 3 = 0.045) you would be at a 0.135 (0.18 - 0.045 = 0.135) and you are going to jail!

2.What are my rights if I am pulled over by the DWI COPS?

DWIDude.com: You have the right to remain silent. Be polite but invoke your right to remain silent, you don’t have to answer any questions.

You have the right to refuse the SFST’s (Standardized Field Sobriety Tests)- the walk and turn, the one leg stand, and the HGN (eye test). You have the right to refuse the breath test! Don’t blow in any machines. You should have the right to leave unless they tell you are under arrest or being detained and then you should insist on having me there as your right to an attorney attached in that circumstance.

3. Why should I refuse the breath test?

DWIDude.com: A - You are already under arrest if you are being asked to blow into the Intoxilyzer 5000.  They do not “un-arrest” you if you blow under a .08

B - How do you know if the reading on the machine you are blowing into is accurate?  Is it error proof? Is it calibrated correctly, is the operator using the machine correctly?  Is the machine detecting other things in your body besides alcohol that is contributing to the “alcohol” reading (yeast, ketones, other interferents, etc.– see the “Intoxilyzer 5000″ section of our website for other factors that may affect a breath test read out).

C - The State gets a “free” expert witness at trial and you may have to hire your own expert at your expense to counter his “bad science”.

4. What are the cops looking for to indicate a person is driving while intoxicated?

DWIDude.com: During the VIM (vehicle in motion) portion of the investigation the officer is watching the vehicle for certain clues to investigate further. The list of clues, or cues, as originally published by the National Highway Traffic Safety Administration (NHTSA) is as follows:

Turning with a wide radius
Straddling the center or lane marker line
Appearing to be drunk
Almost striking an object or vehicle
Weaving
Driving on other than designated roadway
Swerving
Slow speed (driving 10 mph or more UNDER the speed limit)
Stopping, without cause, in the traffic lane
Following too closely
Drifting
Tires on center or lane marker
Braking erratically
Driving into opposing or crossing traffic
Signaling inconsistent with driving actions
Slow response to traffic signs
Stopping inappropriately (other than in traffic lane)

You will notice that “speeding” is not one of the listed cues, nor is defective tail lights or license plate lights. In other words, many DWI investigations begin with non-DWI traffic stops.  The DWI investigation then begins due to issues that begin during the Personal Contact phase of the stop. (see the FAQ page of our website to learn what the cops have been trained to look for during phase 2 and phase 3). Our office has enjoyed great success in DWI trials during cross examination by showing that there were no “drunk driving” facts in the case. Many officers have spread the word that it is better to follow the potential “DWI victim” for some distance in order to observe traffic violations that are on the list.  This allows the testifying officer to beef up the probable cause to make and support the actual DWI arrest. Think of thousands of traffic violations that occur each and every day in your city. Add in the odor of an alcoholic beverage and you have the average “Drunk Driving” arrest.