DWI Stop and Arrest Procedures
In a typical traffic stop in which the officer conducting the stop has suspicion that the driver is impaired by alcohol or other drugs, certain procedures are standard as the investigation progresses. Not all procedures are followed in every case, but what follows is a general outline of procedures you might encounter if you are stopped while driving and the officer suspects impairment or driving after consuming alcohol.
The typical DWI case begins with a traffic stop. At the outset, the officer conducting the traffic stop must have a lawful basis to stop your vehicle (different rules apply in DWI checkpoint cases, however — the constitution is essentially suspended for the purpose of DWI checkpoints or roadblocks). The Fourth Amendment guarantees your right to be free from unreasonable search and seizure, and the right to be free from an unwarranted traffic stop is included in that protection under the United States Constitution. Lawful bases for a traffic stop may include failure to use a traffic signal prior to turning or changing lanes, speeding, defective equipment (e.g. tail light out), or failure to use headlights at night. And a favorite among Wake County police officers is “failure to maintain lane control.” What is never permitted is conducting a traffic stop on a mere hunch that the driver may have been drinking based on the time of night or location (e.g. proximity to a bar) or other factors not specifically related to the conduct of the individual driver.
During a routine traffic stop, the officer will typically ask for the driver’s license and registration, and during that process the officer is permitted to ask questions to investigate the possibility of impairment on the part of the driver. The officer may ask where you are coming from, and if you’ve been drinking. While you are not within your rights to lie to an officer, you do have the right to respectfully decline to answer any questions that might incriminate you in any way (including admitting that you just came from a bar, or that you had two beers earlier in the evening).
If the officer suspects that you’ve been drinking based on your answers to questions or other factors, such as the smell of alcohol on your breath, bloodshot eyes, slurred speech, or a visible open container of alcohol in the passenger compartment of the vehicle, then he or she will likely proceed with a series of tests to gauge possible impairment.
Tests for Impairment
Inside the Car / “Pre-Exit” Tests
Some officers, upon suspicion of impairment during a routine traffic stop, will ask the driver of a vehicle to perform certain tests while the driver is still inside the vehicle. These tests include:
- Reciting the alphabet, sometimes from a specific letter in the middle to a specific stopping point (e.g. from E to Q)
- Counting backwards
- Finger dexterity (touching each finger to one’s thumb on the same hand, in sequence, while counting — sometimes with both hands simultaneously)
NOTE: You are not required to agree to perform any of these pre-exit tests, and in most circumstances it is in your legal interest to refuse.
Standardized Field Sobriety Tests (SFST)
There are three Standardized Field Sobriety Tests that are used by North Carolina police officers, which were developed by The National Highway Transportation Safety Administration (NHTSA) in an effort to help police and prosecutors secure convictions. The three tests are:
- One-Leg Stand Test (stand on one leg and count one-one-thousand etc. until instructed to stop)
- Walk Straight Line Test (walk heel-to-toe, then repeat backwards, or some variation thereof)
- Horizontal Gaze Nystagmus Test (follow pen or light with eyes)
NOTE: Once again, you are not required to agree to perform any of these physical tests, and in almost all circumstances it is in your legal interest to refuse.
Portable Breathalyzer Test (PBT, or Alco-Sensor)
Many officers carry a portable breathalyzer test in their vehicles, and you may be asked to blow into this portable unit. You are not required by law to submit to the portable breathalyzer, however, and it is almost certainly in your best interest to refuse.
It is worth keeping in mind that these tests that officers perform on the scene of a traffic stop are designed to produce evidence of your impairment, in order to support the probable cause required to arrest you and take you downtown to subject you to a more elaborate breath alcohol content (BAC) test at the police station.
Breathalyzer Machine (EC/IR II)
The last step of the DWI investigation will be the police officer’s effort to get a reading of your breath alcohol content from a more advanced machine at the police station, which in North Carolina will be the EC/IR II. This is the only test to which you are required to submit, under North Carolina’s implied consent law. If you refuse, you will lose your license for a year, simply for refusing — and you will likely be forced to submit to a blood test anyway. Whether or not an individual should refuse the breathalyzer test downtown is a question that depends on a variety of individual factors, and may not be the same in every case.
Prior to subjecting you to the EC/IR II, however, the police are required to inform you that you have a right to speak to a lawyer and/or call a witness to observe the test. You should be given thirty minutes to get a witness to the police station. There is no downside to taking advantage of your thirty-minute window to get a witness to the police station to observe the administration of the test.
In general, it is worth keeping in mind that no matter how friendly an officer may be throughout this process, his or her goal is to convict you for a DWI. It is in your interest to respectfully decline to assist them in your prosecution whenever you can do so without adversely affecting your legal interests — even when it is uncomfortable under the circumstances.
Finally, following your DWI arrest and processing, you will be presented to a magistrate who will make a decision regarding bond. You may be released on your personal promise to return to court on an assigned date, you may be required to post a bond, and you may be required to abide by a set of conditions upon release.