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DUI, DWI, and OUI – What Your Options Are When Pulled Over

September 6, 2016

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Being pulled over by a law enforcement officer under the suspicion of a DUI, DWI, and OUI is a frightening and disconcerting experience. However, by understanding your legal options when you’re pulled over, you can keep a level head and protect your rights. Dean Contover and Attorney Mike Bowser of Bowser Law discuss what you can do when you are pulled over for a DUI, DWI, and OUI.

DUI, DWI, and OUI Explained

Dean: DUI, what does that mean? 

Mike: DUI, DWI, OUI are all the same thing. It’s just that different states describe drunk driving, the criminal offense of drunk driving, as one of those three things and it’s based on the statute of the law. For instance, I practice in New Hampshire. In the law, the statute says “driving while intoxicated” is an offense. They call it DWI. In Massachusetts, the law says “operating under the influence” and they call it OUI. In many states, they call it “driving under the influence.” They refer to it as DUI, but all three of those three letter acronyms are descriptions of drunk driving 

Dean: Okay. Let’s say we’re in Massachusetts, not to use New Hampshire. I’m driving. I went to a wedding. I had a few drinks. I’m driving down the road and I get stopped allegedly for – the police officer feels that I have a problem. What should I do? I mean, I know it’s hard for you to tell me what to do in regards to whether I should take the test.  

Mike: I can tell you what you can and have to do. 

Dean: That’s all right.

What to Expect During a Traffic Stop 

Mike: So, almost every drunk driving investigation which leads to an arrest for DWI or OUI, it begins with a moving violation. You are driving without your headlights on. You failed to signal a turn. You rolled through a stop sign or you’re speeding, whatever it may be. The officer, if he has reasonable grounds to suspect that you committed a moving violation or a crime – you could be weaving all over the road and he thinks you’re drunk driving. He activates the blue lights. You’re required to stop and pull over.

And when he approaches the vehicle, he’s always going to inquire of you, number one, license and registration. And you’re required to have those documents – a registered vehicle and be a licensed driver. You do have to hand those documents over to the officer. And at that point, the officer’s always going to inquire as a threshold inquiry, what they call a threshold inquiry, where are you coming from, where are you going.

Your Rights to Decline to Answer Questions or Submit to Tests 

Dean: Do you have to answer that? 

Mike: You don’t. And he’ll ask you based on his initial observations, is your speech off, slurred? Is there an odor of alcohol? He very well may begin with, “Where are you coming from? Have you had anything to drink? How much did you drink?” He’s allowed to ask those questions in every case. And you, as a driver, as a citizen, are not required to answer them. You could say to the officer, “Am I free to leave?” And he’s going to be holding your license and registration and his response is going to be, “No.” And you could certainly say, “Well then, I’m not answering any questions.” Now, that’s not going to make him happy or pleased. 

Dean: Right. 

Mike: And then he’s going to have to make a decision based on everything he’d seen up to that point. Does he have enough probable cause or reasonable, articulable suspicion they call it, to ask you to step from the vehicle? And when he does, you can say, “Why do you want me to get out of the vehicle?” “Because I want to you take field sobriety test,” and you don’t have to take them. And you can say, “I’m not taking them.” And, again, he can’t force them upon you.

And you put the ball back in the officer’s court. He then has to decide. Okay they’ve refused testing, they’re not answering questions. Do I have enough at this point to make an arrest? Some officers will decide, yes, they do. Some may decide there’s not enough here and they may send you on your way with a warning or a citation. But the bottom line is most people don’t know that they don’t have to answer questions after handing over license and identification and registration. And they certainly don’t. 

Dean: But you have to do that. You have to give them your ID. 

Mike: Absolutely, yes. And if he tells you at that point, if you’ve refused to speak to him and you’ve refused to take field sobriety test, if he’s asked you to then get out of the car because I’m placing you under arrest, you do not have a right to refuse to get out of the car. You do not have the right to resist an arrest order.

Dean: All right. That’s a very good point. 

Mike: Even if later on, it’s determined that that arrest without exit order was illegal, you still don’t have the right to resist. And so, I would tell people always be cooperative, polite, but don’t be talkative and you don’t have to voluntarily provide information or have to take field sobriety tests. They are, in my opinion, under the circumstances of a road side stop, nearly impossible to pass under any circumstances.

Dean: Right.

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