Steps an Officer Will Complete When Testing You for DUI

Let's face it. Getting pulled over by the police is scary. Even if you have done nothing wrong, seeing the flashing red and blue lights in your mirror is enough to send even the most stable person into a panic. If you know you might have violated a law, the situation can become even more tense. For example, if you know that you have partaken of alcohol, you may be afraid that you will end up in jail, or worse. After all, being arrested for a DUI is a serious offense that can be financially costly and carry with it implications that go beyond the pocketbook. Hopefully, this small primer will help to calm your nerves in the event of a South Carolina police stop. First, in South Carolina, it is not illegal to drink and drive. Let's say that again: It is not illegal to drink and drive; it is illegal to drive drunk. There is a huge difference between having a drink and having a blood alcohol content that is .08 or greater.
When an officer flashes their lights and directs you to pull over, there has to be a reason for the stop. This is called probable cause. At this point, they may have seen a headlight, tail light, or brake light that is out, perhaps you failed to dim your high beams, you may have even failed to signal while making a turn. Even if the officer has a suspicion that you may have been drinking, there is still a lot of information that must be obtained prior to a DUI charge. Your responsibility is simply to find the next safe place to pull over. If the stop was made during "bar times" or after special events like sporting contests, wedding receptions, or large company parties, the police may be on the lookout for people who have elevated blood alcohol levels. Even so, they must have probable cause to pull you over. If you will be attending one of these places or events, the best thing you can do to lessen your chances of being pulled over is to ensure your vehicle is well maintained. Check to make sure all of your lights and signals work. You may also want to plan for an alternate route home that does not take you along the most direct path and past the majority of law enforcement activity. If your car does not stand out, you significantly lower your chances of being pulled over. If you do get pulled over, do these three things to set the tone in your favor:
  • Open your window
  • Turn on your dome light
  • Put both of your hands on the steering wheel
If there are any fumes that may smell like alcohol, an open window will help to vent the smell prior to the officer's arrival. You may even want to lower your window while you are finding a safe place to pull over. Turning on your dome light gives the officer a chance to see you clearly so they are less likely to be jumpy approaching your vehicle. Having both of your hands in plain sight on the steering wheel also makes them feel better about their own personal safety. This can go a long way toward keeping the situation peaceable. Doing these three things also shows a calm, rational state of mind which can be used to show a lack of impairment later on, if needed. The first thing that the officer will do when he approaches your car is to administer psychophysical tests. These are tests done to measure your mental and physical ability by addressing balance, coordination, and information processing: the same skills that are needed for safe driving. They will begin these tests the second they see you.
 The Initial Conversation and Tests - Admit No Guilt 
The first thing an officer typically asks is if you know why you got pulled over. It is very important that you are polite and respectful, but admit nothing, even if you have your suspicions. If you have been drinking alcohol, this is even more important, as many people have the tendency to overcompensate in stressful situations. They tend to act a little too friendly and talk too much; you must not do so. Remember, you do not have to talk with the officer or give them any information except for providing your driver's license, proof of insurance, and the vehicle's registration. The single best response to the officer's question is a simple "No, officer," and then stop talking. The officer will then either ask for your driver's license, proof of insurance, and the vehicle's registration, or they may go right for the jugular by asking if you have been drinking. If they ask if you have been drinking, do not lie, but under no circumstances answer this question. In South Carolina, you have the right to remain silent, and you do not need to answer any of the officer's questions. Instead of just staying silent, it is best to simply smile and say, "Do you need to see my license?" Refusing to have a conversation with the officer is not an admission of guilt or a sign of alcohol impairment. Remember, the officer is looking for you to slur your words or say something that does not make sense. The less you talk, the less opportunity there is to make a mistake.
If you do make any admissions of alcohol consumption, the officer now has probable cause to further an investigation. Even if you say that you had one beer eight hours ago, you have admitted to alcohol consumption. It cannot be stated enough: Any admission or statement you make will be used against you. Make the officer base their decision to move forward with a DUI investigation or arrest on something significant that they discover, not your admissions. If they move forward with no cause, your case may get thrown out. When the officer asks for your driver's license, proof of insurance, and the vehicle's registration, it is a test. They are asking for multiple pieces of information at the same time. They might also try to distract you with questions (Do you know what time it is, or where are you coming from, etc.) to see if you can multi-task. If they ask you a question, you can ignore it, or calmly say, "I'm sorry, officer, let me get you my information first." The officer is trying to divide your attention. Don't let them. Remember, you do not have to answer the officer's questions. If you think you might find yourself in a situation like this, it is important to keep your license, registration, and insurance information in a place that is convenient and easy to locate. The officer will be making close observation of your every move. If you are flipping through your cards and go past your driver's license so that you need to go back through the cards again, the officer will note this in their report if they decide to cite you for a DUI. If you fumbled with the papers in the glove box, they will make note of this as well. The officer will often take this opportunity to ask if you mind if they look around in the car. You are strongly advised to say no to the search. A South Carolina police officer will know that you have the right to refuse consent to a search, and, without it, they cannot do any more than look inside through your windows. If they respond, "If you have nothing to hide, you would consent to the search," smile and ask if you are free to go. The officer will know that they now have to make a decision.
A person that is not under arrest has the right to leave the scene, so they have to make a choice about whether they have enough evidence to move forward with their investigation. They will either let you go, make you wait for a ticket (for the reason they pulled you over), or move forward with the DUI investigation. The officer might also take this time to attempt to administer another psychophysical test. The most common involve reciting numbers or letters forward and backward, or counting while touching your fingertips. If the officer asks you to do this, politely refuse. You do not have to perform these tests, and there is no official penalty for refusing. The only reason the officer is asking is to justify moving forward with their DUI investigation. The unofficial penalty for not taking the test is that they may ask you to get out of the car. This you do need to comply with. It should be noted that the officer can ask you to step out of the car at any time. If they do, roll up the window, close the door, and put the keys in your pocket. Remember, the officer will be closely watching to see if you fumble, stumble, or show any other signs of impairment.
 The Field Sobriety Tests - When to Decline 
If the officer suspects you are impaired, they will be looking for a reason to perform a chemical test. Make note whether or not they inform you of South Carolina's implied consent law, which basically says that when you get your driver's license you agree to take sobriety tests, including a breathalyzer if arrested. Note that this does not say you have to consent to an FST, and only applies after they have decided to arrest you for probable cause. When the officer tells you that they are going to conduct a Field Sobriety Test (FST), if there is any chance you are over .08, refuse to take the test. You will most likely be taken into custody at this time. Since you are now being arrested, the officer needs to read you your Miranda rights.
Make note of the time and place you were Mirandized. Also, since two important parts of your rights are the right to remain silent and the right to an attorney, avail yourself of these rights immediately. The officer may try to get you to be chatty in the back of the vehicle. Remain silent. They cannot ask you any more questions once you invoke your right to an attorney, but anything you say can still be used against you. When you get to the station, you will be asked to blow into a breathalyzer. Refuse. The officers will try to scare you with license suspensions and so forth. In South Carolina, you can appeal this and even get a temporary license during the time of the appeal. If the case gets thrown out for any number of reasons that your attorney will fight for, your license may not be suspended at all. Insist on calling your attorney.

What Happens if You Do Take the Field Sobriety Test (FST)?

Preliminary Breath Test
Officers use the FST to determine whether or not there is enough evidence to move forward with a DUI arrest. If they arrest you without probable cause, they could face a lawsuit. The most common of the field sobriety tests are the Horizontal Gaze Nystagmus, the walk and turn, and the one-leg stand. The preliminary breath test (PBT) may also be administered. A PBT is just an indication that the blood alcohol content might be too high, but the results are usually not admissible in court except to show probable cause. With a PBT, any residual alcohol must be out of the mouth at the time of the test. It takes at least 15 minutes for this to happen. If you want to delay a PBT, simply put something in your mouth when the officer is there, like chewing tobacco, a cigarette, mouthwash, breath spray. They will have to wait another 15 minutes before administering the test.
Horizontal Gaze Nystagmus
A Nystagmus is an involuntary jerking of the eyes. The Horizontal Gaze Nystagmus (HGN) is an FST used to see if alcohol or other drug has caused your eyes to jerk. Since the HGN response is completely involuntary (you can't control your body's response) this test is considered the most reliable of the field sobriety tests. When used together with other tests, it is said to be 88 percent effective in determining whether a person has over a .08 BAC. The officer will tell you to stand with your feet together with your hands to your sides, hold your head still, and follow the tip of a light or pencil with your eyes only. If you cannot stand with your hands by your sides, the test will be over. If you can, your body will give you away if you are impaired. If there is any chance your BAC is over .08, refuse this test.
Walk and Turn
The walk and turn test was researched with support from the National Highway Traffic Safety Administration (NHTSA) nearly 50 years ago. It only 68 percent accurate, but, when combined with the HGN, the accuracy goes up. The walk and turn test has two parts: instructions and walking. The officer will be taking notes on both stages. As with other tests, the purpose is to divide your attention. In this case, it is between listening, understanding, and following the instructions. During the instruction stage, the officer will instruct you to stand with your feet in a heel-to-toe position with your arms to your sides. You will need to remain like this while the instructions for the test are explained. After the instructions are explained, the officer is supposed to ask you if you understand the instructions. If you are not positive, say no. The instructions are to walk in a line taking nine heel-to-toe steps while counting out loud and watching your feet, turn and make nine more heel to toe steps back while counting and watching your feet. During the turn, you will need to keep your front foot still while using the other foot to make a few small "steps" around to get you facing the other direction. If you are over the age of 65, have back, leg, or inner ear problems, the officer is not supposed to use this test, since it is far less successful. Those wearing heels should also be given the chance to take them off. If the area is gravel or unstable, make note of this, because the officer is supposed to find a flat, stable area for the test.
One-Leg Stand
The one-leg stand is another NHTSA test from the 1970s. By itself, it is 65 percent accurate. As with the walk and turn test, the object is to divide your attention between instruction and performance.
For this test, the officer will tell you to stand with your hands next to your side and with your feet together. They will note if you are swaying or if your hands leave your sides by more than six inches. As with the other tests, the officer is supposed to ask you if you understood the instructions prior to commencing with the test. During the test, you will be asked to pick one foot up off the ground about six inches. The foot is to be parallel with the ground while the other leg remains straight. You will look at the foot that is off the ground and count to 100 (or some other high random number) by one thousands (one thousand one, one thousand two, one thousand three, and so forth. While you are counting, the officer will be timing you. If doesn't matter how fast you count or how far you get, they will have you count for 30 seconds. The research says that many people who are impaired are able to stand on one leg and count for up to 25 seconds; for some reason very few can make it to 30. As with the stand and turn, if you are over the age of 65, have back, leg, or inner ear problems, the officer is not supposed to use this test since it is far less successful. Those wearing heels should also be given the chance to take them off. If the area is gravel or unstable, make note of this because the officer is supposed to find a flat, stable area for the test.
The DUI Arrest
It should be stated again: If you suspect that your BAC is .08 or greater, refuse to take the FST, and risk be taken into custody. In South Carolina, you have the right to refuse to take field sobriety tests; however, the officer may see this as reasonable suspicion and arrest you. If you did not do well on the tests (people rarely do), they are going to arrest you anyway, and now they have the test results to show the judge and jury. If you do not do well on the tests and an arrest is made, the officer must read you your Miranda rights. Use them; invoke the right to remain silent and have an attorney present for any and all questioning. The police are supposed to stop all questioning once you invoke your right to counsel. If they don't, make note of this. An officer must be able to show that you were impaired when they pulled you over. The less information you give them, the stronger your case is and the weaker theirs is. In South Carolina, officers can only use the results of chemical tests (breath, blood, etc.) if they have arrested you. Without sufficient evidence to warrant an arrest, none of the other tests will be admissible. If you end up at the police station, or if you feel that your rights have been violated in some way along the line, do not fight with the police. Remain respectful and calm; then contact your South Carolina defense attorney. Your attorney will know how to challenge the charges against you, file complaints, or even peruse a lawsuit. In the movies, everybody says, "Call my lawyer." When you invoke your right to counsel, who are you going to call? It is always better to be prepared, rather than find yourself in need and without the required information. Request a card, keep it in your wallet, and remember - in South Carolina it is not a crime to drink and drive, and the police must prove that your BAC was over .08 for a DUI conviction. Don't help them do it.

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