When stopped by a police officer you are required to provide the officer with your driver’s license, automobile registration and proof of insurance, when requested. You are not required to answer other questions, especially questions regarding your sobriety, where you have been or where you are going. Officers are trained to engage suspects in conversation in order to monitor their responses. They monitor speech pattern to determine if there is alcohol on the breath or if the speech is slurred. They record the appearance of the suspect to see if the suspect is disheveled and whether they are able to locate their wallet and related paperwork. Your dialogue with the police officer may be limited by you. A suspect may lawfully and politely choose not to answer any questions other than those regarding his identify. If a suspect chooses to answer some questions, he may choose to do so with brief yes or no answers or a nod of the head. Police Officers are trained to ask questions which call for a dialogue between the officer and the suspect, ie. in an attempt obtain incriminating information. If a suspect chooses not to speak with an officer, the suspect should politely inform the officer of his decision not to answer questions at this time and that he wishes to engage his legal right to counsel when that right becomes available to him.

The important thing to remember is that anything a suspect says or does in the presence of an officer is potential evidence and will be used against her in court. At a minimum a suspect should bear this fact in mind and not engage in a dialogue which clearly will incriminate her at a later time. As defendants soon learn, many law enforcement officers do not approach these serious criminal matters with an open and objective mind. Officers record information and results of field sobriety tests (FSTs) with the specific intent to incriminate the suspect and obtain a conviction. Most officers tend not to record information which may prove to be helpful to a suspect. Therefore, it is not necessary for suspects to provide incriminating dialogue or other evidence which will later be used against them.

The Miranda rights are information that is read to the Defendant when he is arrested and taken into custody. These rights are given to the Defendant so he knows that he does not have to answer questions which will later be used against him in a court of law. The Miranda rights do not attach when a driver is first stopped because the driver is not in custody or arrested at that time. Therefore, anything that is said to an officer at that time can be used against him. Later, if the driver is arrested and removed to the station house, the driver should be “Mirandized” because he is now in police custody. Once in custody, if the officer asks a question without providing the Defendant Miranda warnings, the response to the question, if incrimination may be able to be suppressed in court.

A Defendant in custody will also be given/read his administrative rights to either take the breathalyzer test or to refuse. The penalty for a refusal is reviewed with the defendant and the defendant must determine what she wants to do. While it is not a legal requirement at this time, a defendant may ask to speak with counsel and sometimes an officer may allow that communication to facilitate the transaction. Typically on a first offense it is a better decision to take the breathalyzer test because the administrative penalty outweighs the probable criminal penalty. However for a subsequent offense, especially a third or more, a defendant may wish to consider declining the test because the criminal penalties may far out way the administrative penalty.

When a police officer stops a suspect for possible DWI, the officer is trained to look for several “clues” to help him make a determination regarding the sobriety of the suspect. The clues are largely derived from the research of the National Highway Traffic Administration (NHTA). The NHTA prints a manual which law enforcement officers are trained to follow in alcohol related stops. A few of the clues include:

1. Effectuating an improper turn (turns with too large/small a radius)

2. Repeatedly crossing the double yellow lane

3. Striking objects on the roadway

4. Excessive weaving or swerving between lanes, erratic driving

5. Driving too slow (less than 10mph) below speed limit or too fast (necessitating a stop)

6. Stopping in a traffic lane without reason

7. Following too closely behind the vehicle in front

8. Braking the vehicle in lane of travel erratically or without cause

9. Signaling inconsistent with driving actions

10. Driving with vehicle headlights off

Initially in a traffic stop, an officer is looking for signs of alcohol use. An officer will engage the suspect in a dialogue in order to monitor speech pattern and to smell for alcohol. They will note the suspects physical appearance in the car, any odor of alcohol in the car and any open containers in the car.

While a suspect always has legal rights (ie. the right not to incriminate herself by answering questions) which they may choose to exercise, it is important that a suspect always be polite a courteous to law enforcement officers. If a suspect chooses not to answer questions or to engage any field sobriety tests as requested by the officer, the suspect should politely inform the officer of his decision and allow the officer to determine how he wishes to proceed. The officer may choose to take the suspect into custody and transport her to the police station in order to administer a breathalyzer test. This is a test based on the suspects alcohol content on her breath. A suspect will blow into a machine and the machine will determine alcohol content on the breath. The result of this test will be used against the suspect in court.

If requested by a police officer to take the breathalyzer test (not to be confused with a preliminary breath test which is given in the field and is not required by law), Maryland law requires that the suspect take the test. Technically, a suspect can refuse to take the test if they so choose but the suspect will face administrative penalties involving the probable loss of their license for a significant period of time (120 days for a first refusal and a year for subsequent refusal). A suspect is always entitled to an Administrative hearing when stopped for an alcohol violation in order to modify the possible penalty for the offense but a suspect is reminded that the administrative request for hearing must be filed timely (generally within 10 days of the offense but in no event later than 30 days).

In a word, NO. Field Sobriety Tests (FSTs) are generally not a good idea. The problem with FSTs is that they are typically given on the side of the road or on a nearby parking lot, at night, in the presence of an officer, under stressful inquisition type circumstances by an individual whose primary motivation is accumulating evidence to use against you in Court.

The FSTs measure varying levels of physical coordination and the ability to listen and to follow what the officer is telling the suspect to do. The tests are not natural, some are open to serious critism and often times they are not properly explained by the officer. If a suspect chooses not to engage the FSTs, there is no penalty for that decision but the suspect is cautioned to be respectful and polite to the officer when making the decision.