How To Respond When You’re Pulled Over and Have Been Drinking – OWI Blog (Part 1)

If you operate a vehicle, i.e. any “device for transportation by land or air” that is not “moved by human power”, “runs only on rails or tracks”, a wheelchair,” or an “electric personal assistive mobility device” and you consume alcohol or use controlled substances (whether prescribed or not), you should know what to do if a law enforcement officer suspects that you are intoxicated. Getting pulled over is bad enough. Don’t make it worse.

If a law enforcement officer turns on their emergency lights or siren, you must immediately pull over to a “position parallel to and as close as possible to the right-hand edge or curb” of the road. If you look for a good parking spot or a better part of town, you may be making things worse for yourself. Don’t make a bad situation worse. Once you stop, just wait. Don’t get out of your vehicle. Don’t make sudden movements. Don’t pick up anything off of the floor or put anything in the glove box. Just wait.

Keep in mind that the investigation has already begun. The officer pulled you over for a reason. It probably won’t help to plead for mercy, give an explanation, or make an apology, but it might hurt. The more you talk, the more evidence (i.e. your alcohol scented breath) you share with the officer. Also, the officer asks you if you know why he pulled you over while you are looking for your license and registration for a reason. You are nervous and your attention is divided. That’s how field sobriety tests work. Intoxicated people don’t do well with divided attention tests. Many sober people don’t either. While you are looking for your license, the officer is looking for items in plain view in your car. Is there a gun on the floor or a pipe in the cup holder? Yeah, the officer just saw it.

Next, the officer will ask you to step out of the vehicle. Even if the officer says that he just wants to read you a warning, he can ask you to step out of the vehicle. Arguing is not going to change it. The officer can also pat you down. Now come the field sobriety tests.

The field sobriety tests come in two forms. There are standardized field sobriety tests, or SFTSs, and non-standard tests. The officer can ask you to perform any of these tests. The SFSTs include the Horizontal Gaze Nystagmus (HGN), the One Leg Stand, and the 9 step walk and turn.

The HGN test involves your eyeball. When you consume alcohol or certain controlled substances, your eyeball twitches. This can also happen if you have certain medical or genetic conditions. The one leg stand and walk and turn are divided attention tests. The tests also start before you think they do. Many people fail during the instruction step. When the officer asks you to stand in a certain position while he instructs you on the test: yeah, that part is graded. Many people think they passed these tests. You probably didn’t.

The officer may also ask you to perform non-standard field sobriety tests like saying the alphabet or counting backwards. Often, the officer will have you start and stop at weird spots, like going from C to N. Drunk people don’t stop at N.

The next step is the portable breath test or PBT. You’ll have to blow into a straw. The test will have a result, but the number really doesn’t matter. If you’re at this point, the officer saw something. If the PBT says 0.00, then the officer probably suspects something besides alcohol. The officer may then conduct a drug recognition evaluation (DRE). The good news is that the Indiana Court of Appeals, in Dycus v. State, held that the officer must inform you of your right to consult with an attorney before making you take the DRE.

If the PBT says anything else besides 0.00, the officer will probably read you the Implied Consent warning. Implied Consent is confusing. For the privilege of driving on Indiana’s roads, we have all agreed to consent to a certified chemical test. This agreement was probably on page 75 of some driver’s education handbook you didn’t read, but the end result is the law thinks you agreed. Sorry. You do not have a right to consult with an attorney about whether to take this test. Anything other than “Yes” to the officer is bad. If you do not take the certified chemical test, and it could be a breath test or a blood draw, or both, your license will be suspended for one year. Or two years if you have a prior conviction for operating while intoxicated.

Also, yes you just took a breath test – the PBT. No, that test doesn’t count. The PBT is not a certified chemical test. Many people say “didn’t I just do that?” No. You didn’t. Now you didn’t say “Yes” and that’s bad.

The officer does not have a certified chemical test in his car. The officer will transport you to the jail or a hospital or the police department for the certified chemical test. What about your car? It will be towed. Before towing it, a law enforcement officer will conduct an “inventory” of the vehicle. Remember early when I said to not put anything in the glove box? It wouldn’t help. When the officer inventories your vehicle, they’ll check the glove box.

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