So what are my Maryland DUI rights anyway when I get pulled over late on a Saturday night for a suspected DUI/DWI infraction? Some friends tell me to blow others say don’t blow, do the field sobriety tests, don’t do the tests, answer questions, don’t answer questions and what about my Miranda rights and don’t the police have to advise me of them?
Alright, here it is! When stopped by a police officer, he must have a legal basis to stop your car. He will always come up with a reason to stop you, but many times we can challenge that. Now, you have been stopped, once the officer smells alcohol on your breath, you are basically cooked! He is going to arrest you. Everything he does from this point on is geared towards obtaining evidence to use against you in Court. That is important, everything from here on is engineered to use against you in court!
The cop does not present it that way, he tells you that if you will do the tests (we like to refer to them as exercises or roadside gymnastics) that he might be able to let you go. It is highly unlikely this is going to happen. The DUI coordination exercises are relatively complicated for a sober person to perform much less anybody that has had a drink or is scared late at night, or is not dressed properly to attempt them or is uncomfortable on the side of the highway. Each time you make a minor mistake on the DUI exercise, he writes that down and uses it against you in court. By the time you have completed all the exercises, the cop has quite a little arsenal to use against you; and oh yes, you are being arrested and taken to the station where more evidence will be gathered to use against you. Again, the reason for the DUI arrest is largely because of the odor of alcohol on your breath, the field sobriety exercises were just the icing on the cake to arrest you.
The field sobriety exercises consist of the horizontal gaze nystagmus test, an eye test looking for jerking of the pupil, the walk and turn test, wherein you are told to walk on a line, heel touching toe and turn around and come back. and the one leg stand, where you are asked to balance on one leg for thirty seconds without falling over. Good luck.
These tests are designed to be physically and mentally challenging. They test your ability to do the exercise while being verbally given a variety of instructions to test your mind at the same time. Perhaps this would not be so difficult except for the level of anxiety that most people feel during an interaction with the police. So, what to do when asked, will you perform FST exercises?
Answer: No thank you. It is always important to be polite to the police officer (as difficult as that may be with some of the officers) because a judge one day will place some consideration on how you behaved; but that does not mean that you need to hang yourself out to dry on a charge for which you very well may not be guilty. So, when asked, you may simply and politely say that you elect NOT to perform such exercises because they are not fair and that the officer should do whatever he is going to do next. The result will undoubtedly be an arrest because he now needs to continue to look for evidence against you, but the key is, you are going to be arrested anyway and in this country, you do not have to be a witness against yourself. Albeit the police won’t tell you that either.
There is no penalty (administrative or otherwise) for not doing the FST exercises. There is a significant downside when you do attempt them and do them poorly. Conclusion: Don’t do it.
Other matters of interest are the preliminary breath test which you may be asked to take on the street and the intox machine back at the station house. We will discuss those in a following post.
Bruce Robinson Maryland DUI Defense Lawyer