The Constitution guarantees us all the right to refuse to give the police, the State, the Government, the DA, evidence they can use against us. We don’t have to talk. We don’t have to perform. We don’t have to reveal. We don’t have to consent. We don’t have to be witnesses against ourselves.

When You are Stopped

It’s that moment everyone dreads. The blue lights go on behind you. What should you do?

DO:
Immediately pull over to the side of the road in an appropriate place to stop
Provide your license and registration to the cop
Get out of the car if the cop tells you to
Go somewhere to get away from the road if the cop tells you to

DON’T:
Perform any pre-exit tests (alphabet, counting backwards, finger-dexterity etc.)
Blow into anything
Answer any questions
Perform any field sobriety tests
Consent to anything

Standardized Field Sobriety Tests

REFUSE TO TAKE THEM

The so-called standardized field sobriety tests (SFST’s) are designed to make you fail, and can result in your being found guilty of a DWI when you’re NOT GUILTY.

You should never take the SFST’s.

There are no negative consequences in refusing to take these tests (except the DA arguing that you refused because you knew you would fail—a loser’s argument).

These tests were designed by a governmental organization called The National Highway Transportation Safety Administration (NHTSA), and have been cleverly cloaked in the mantle of science when they are in fact the furthest thing from science you can get. They are a police-tool designed to make people provide evidence of impairment… even when they’re not impaired.

There are only three standardized tests: the Horizontal Gaze Nystagmus Test (the eye test referred to as HGN); The Walk and Turn (the heel-to-toe test); and the One Leg Stand test. The other tests that the police will sometimes offer (finger-to-nose, sway test and any other acts of acrobatics or silliness) are non-standardized and should also be refused.

According to the government’s own statistics, the accuracy of the SFST’s in determining alcohol concentration/impairment are as follows:
HGN……………..……77%
Walk and Turn…….…68%
One Leg Stand………65%

In other words, one out of every four times these tests are given properly, the results are going to be wrong. One out of every four people convicted of DWI on the basis of these DWI-specific tests will have been wrongly convicted. That’s frightening. And who knows their accuracy when they’re given improperly… as they usually are?

These tests are pseudo-science at best, bad science at worst, non-science in reality, and yet are accepted as good science by courts across the country because the government says they are. The one sure way of ensuring that these horrible tests cannot be given any weight in a court of law against you is by refusing to take them.

Searches

Do not give consent to a search of anything – your person, your house, your car, anywhere, any time. If the policeman does search even in the face of your non-consent, don’t try to stop him. Be very clear, however, that you are not consenting to a search or even a pat down (it’s amazing what they’ll argue constitutes consent, so be very, very clear that you are not consenting).

The Breathalyzers

The PBT. If you are requested to blow into the policeman’s portable alcohol screening device at any time, whether you are still in your car, on the side of the road, in the policeman’s car, anywhere, refuse to do so. This refusal, like all the refusals discussed above is a refusal without negative consequences to you. And might be the difference between guilty and not guilty. Refuse the PBT.

The Breathalyzer downtown (The EC/IR II). The decision on whether to blow into the machine downtown that allegedly measures your blood alcohol concentration by examining what it thinks is your breath alcohol concentration is a tricky one.

In North Carolina, if you refuse to blow into the machine downtown your driver’s license is automatically suspended for one year. This is so because we have something called an implied consent law that allows the State to do this. And they can take your license for refusing to blow even though they can (and will) draw your blood…whether you want them to or not. So how does this work? You’ll exercise your right to refuse (or they’ll say you refused), and they’ll force you to have someone stick a needle in your body, extract your blood, and still take away your license for refusing to blow even though they got the evidence they wanted. And then, even if they mess up and can’t get the blood test results into evidence at trial, they’ll argue that you refused because you knew you’d blow above a .08. This is so even when they could have followed the proper procedures for having the blood test results come into evidence and actually prove the alcohol concentration.

The decision on whether to blow is one only you can make. The really interesting question is how far they’ll go to force that needle into your arm when you’re insisting on not allowing it. At what point must they respect your right not to be assaulted with a potentially dangerous weapon by your government? Will they charge you with something when you resist? Probably. (One wonders what that the founders of our country would say about that.) If you find yourself presented with a search warrant for your blood (yes, they use a search warrant to get into your body), you should object, insist, remonstrate, and, if it becomes apparent they’re going to force you, submit. Sorry.

The machine used in North Carolina to determine a person’s alcohol concentration is called the EC/IR II. It’s difficult to fully know how bad the science is that this machine employs because the State won’t let us know about the science behind this machine. How this machine actually converts a person’s breath into a blood alcohol concentration is a closely-guarded secret (we do know that they multiply what the machine thinks is the breath alcohol concentration by 210 to come up with a blood alcohol concentration on the theory that we’re all exactly the same as each other – male, female, small, large, fat, thin, old, young, black, white, yellow, brown – we’re all the same). Only law enforcement people and certain other agents of the State may take the classes to become what they call “chemical analysts.” The rest of us aren’t allowed to. What’s the State trying to hide? Well, we don’t know. Because they’re hiding it. But they can’t really hide it from us. This machine is simple and useless. Here’s an interesting fact from the manual: The machine claims to be immune from Radio Frequency Interference yet has a Radio Frequency Interference monitor. Why? If it’s immune? Here’s another: the machine relies on a scientific theory called Henry’s Law. But Henry’s Law cannot apply…unless the state wants to argue that a person’s body is a sealed a vacuum, which, if it were, would make it impossible for us to breathe.

Right to Witnesses

The Constitution protects the right of the accused to gather evidence in his own defense. What this boils down to in the context of being charged with a DWI in North Carolina is essentially two things:

The right to have a witness view the breathalyzer testing procedure

Before being asked to blow into the breathalyzer machine downtown, you will be given a series of rights. One of these is the right to have a witness view the breath testing procedure (but that the testing will not be delayed more than 30 minutes for this purpose). You should attempt to exercise this right. Make your phone calls. If you are able to have someone come and watch you blow, that person might be able to refute the allegation that you refused and could help in other ways. If you discover, after the fact, that the person you called arrived within the thirty minutes but was prevented from entering the room to be your witness, this is the best thing that could have happened. Tell your lawyer; you might be able to have the breath-test results suppressed or even have your case dismissed.

The right to gather evidence within a relevant time after the alleged driving

In a DWI both the prosecution and the accused have a limited amount of time to gather evidence either to prove the crime or to challenge the state’s evidence with other evidence. This is so because evidence of either impairment or sobriety within a relevant time after the alleged driving is diminishing as time goes on. After the policeman who arrested you has handed you over to the magistrate, you will either be released on your written promise to appear or be told of the conditions under which you can be released such as posting a bond or spending a certain amount of time in jail or being released to a sober, responsible adult or some combination of these sorts of things. If you are released on your written promise to appear then your right to gather evidence in your defense has probably been preserved since you will be free to do so. If you are prevented in some way from securing your release until after the relevant time, then your right to gather evidence in your defense might have been violated. If it becomes apparent to you that the magistrate is going to place conditions on your release that will delay or prevent your release, you should make it clear that you want to be released. And if you are asked to list people who you want to call or be allowed to come and see you in jail, you should do so. You should make every effort to contact people to come to see you or get you out of jail. Again, tell your lawyer if you were not released on your written promise to appear.

Civil Revocation of your Driver’s License

Almost everyone charged with a DWI in North Carolina is subject to an immediate 30-day pre-trial suspension of his driver’s license. This suspension is called a civil revocation (so-called to avoid it being viewed as what it actually is: a pre-trial criminal punishment for the crime of DWI and therefore double-jeopardy. Your right to challenge the pre-trial civil revocation of your driver’s license is very limited in scope and time. So you should talk to a DWI lawyer immediately.

In most cases, a person charged with a DWI and subject to the civil revocation is entitled to a pre-trial limited driving privilege after the first ten days of the suspension. After the 30 day civil revocation, the accused will be eligible to retrieve his driver’s license from the clerk of court for a fee and be permitted to drive without restriction. If you allegedly refused to blow into the machine, you should talk to your lawyer about your right to challenge the refusal by way of a hearing before a DMV hearing officer.

Conclusion

This is certainly not an exhaustive discourse on your rights when charged with a DWI. However, this brief overview of some of your rights and options when you find yourself charged with a DWI should give you an idea of why you should contact a DWI lawyer immediately.