Proper Conduct For A DWI Stop

Proper Conduct For A DWI Stop

By:  Jason L. Van Dyke, Esq.



            The most common offense for which any criminal defense lawyer is hired, aside from minor traffic violations, is certainly driving while intoxicated.  There is a good chance that everyone reading this article knows why: there are very few people who can honestly say that they have never gotten behind the wheel of a car when they shouldn’t have.  Lobbying from groups like Mothers Against Drunk Driving have made DWI laws ridiculously tough.  It is one of only a few offenses (the others being murder, sexual assault, etc) where deferred adjudication is not available as a potential plea bargain option in Texas.  A third DWI offense is a felony in Texas, and with various enhancement provisions, I would guess that there are some people in prison right now serving what amounts to a life sentence for multiple DWI convictions.


            I do not condone drunk driving and have been the victim of a drunk driver in the past.  I believe that all Proud Boy chapters have a moral obligation to ensure that any of their brothers have their car keys taken away and get a safe ride home.  Allowing a brother to drive drunk is a dishonor:  In addition to the risk he could pose to others, allowing a brother to drive intoxicated shows that you really don’t care about the harm he could do to himself if permitted to do so.  Accordingly, I fully support local chapters making their own rules that deal with situations where brothers are too intoxicated to legally drive.


            The unfortunate truth is that DWI an offense that is over-prosecuted.  The evidence used to support DWI cases of often flimsy and highly subjective in nature.  Unfortunately, there is little that most attorneys can do for a defendant by the time many DWI cases reach their desks.  Why?  Because the client has already lost the case through ignorance of their constitutional rights.  The purpose of this article is to educate fellow Proud Boys on proper conduct during traffic stops so as to minimize the risk of an arrest or conviction for driving while intoxicated.


            First and foremost, it’s important to understand that all traffic stops should be considered DWI traffic stops.  This is because there are four stages to a DWI stop and the first of those phases is the “vehicle in motion” phase.  While those driving recklessly, who are unable to maintain a single lane, or stopping for no reason are likely to be pulled over specifically for DWI, it’s far more common for an arrest to be made when a vehicle is stopped for a more common offense such as speeding, expired tags, or other very minor offenses.  When interacting with an officer for any of these offense, you should always be mindful of the fact that police are always looking for drunk drivers.  A minor stop can turn into a DWI stop at the drop of a hat.


            Once you have stopped, the officer will typically ask for your license and proof of insurance.  The truth in Texas is that the officer is perfectly capable of pulling up proof of insurance by himself.  All field sobriety tests are divided attention tasks and the officer is attempting to divide your attention.  Keep your insurance card with your driver’s license in an easy to reach location so that you can easily hand the officer both as the same time.  Obviously, be sure that your vehicle is clear of any containers of alcoholic beverages and avoid wearing clothing that advertises drugs or alcohol.  If you use any illegal drugs, or if you are on any prescription medications, you should avoid traveling with them (and certainly do not admit to having them or taking them).

            Once the officer may ask you to perform several tasks (which may also be conducted later as field sobriety tests as well).  The officer ask you questions concerning information contained on your license to see if you are able to remember is (e.g. “what is your middle name).  He may ask where you are coming from or where you are going (to see if you are coming from a place where alcoholic beverages or served and to determine whether you are on a reasonable route to or from those locations).  The officer will then ask you how much you have had to drink, whether you are on any prescriptions, or whether you have been using any drugs.  These are all trick questions and the correct answer to each of them is NO.  Never admit to drinking or using drugs, even those you have a prescription for, to an officer.  The officer is likely to hem and haw.  He may call you a liar.  He will threaten to take you to jail if you don’t tell the truth.  He will threaten to impound your vehicle and do all manner of other things if you don’t tell him how much you have “really” been drinking.  These are tricks.  Pick a response and stick to it no matter what: you’re probably going to jail anyway.


            During this phase of the investigation, the officer might conduct one or more of the following three tests.  These are not field sobriety tests (which are typically only issued after the officer has already decided to arrest you), but rather, are used by the officer as a basis to detain you further.  These tests are not always given, but may include any of the following:


  1. Alphabet.  It is a myth that officers will often ask a subject to recite the alphabet from “Z to A” backwards.  It’s far more common for an officer to ask a subject to recite the alphabet beginning with a letter other than A and ending with a letter other than P.  This type of test should be refused. 


  2. Count Down.  In this technique, the officer will ask you to recite 15 or more numbers in reverse.  One example provided is to insist that the subject begin with the number 68 and end with the number 53.  Officers are taught never to give starting or stopping points ending with the numbers 0 or 5 (e.g. 65 or 50) because these are too easy to remember.  This type of test should be refused. 


  3. Finger Count.  The subject is asked to touch the tip of the thumb in turn to the tip of the finger on the same hand while simultaneously counting up one, two, three four, then to reverse direction on the fingers while simultaneously counting down four, three, two one.  This test should be refused. 


    Once you are asked to exit your vehicle, you can be assured that the officer has already made the decision to arrest you.  There is no use in cooperating any further with the officers investigation as doing so will only prejudice you in Court.


                The third stage of a DWI stop is what officers refer to as the pre-arrest screening process.  Although you have not yet been placed into handcuffs or informed that you are under arrest, this is an evidence-gathering process for the officer where standardized field sobriety tests are conducted.  The following three tests have been specifically approved for officers in making a determination as to whether a person is intoxicated.  They are almost always recorded by a dashboard camera, and such recordings are admissible as evidence in a driving while intoxicated case: 



  1. Horizontal Gaze Nystagmus.  This is the most common of the standardized field sobriety tests and is considered to be the most reliable.  The test generally consists of the officer asking the subject to keep their head still and to follow an object like a pen, the tip of a finger, or a small flashlight using only the eyes.  As this is considered the most reliable, as well as being the only one where they jury will be unable to see or hear the test results for themselves, a person should always refuse to participate in this test. 


  2. Walk & Turn.  During this test, the officer will demonstrate the starting position.  This involves the subject standing with their feet in the heel to toe position) while the officer explains the remainder of the test.  It’s actually possible to fail this test before any walking occurs.  If you are ever asked to put your feet in a heel to toe position on an actual or an imaginary line, you should refuse to do so.


  1. One Leg Stand.  The officer will instruct the subject to stand with their arms at their side and to stand on one leg while counting aloud until they are told to stop.  The test typically lasts about thirty seconds.  This type of test should be refused. 


            An officer may, at this stage, offer a preliminary breath test.  This should be refused.  Once you have completely refused to cooperate with any of the tests offered by the officer, you will be placed under arrest for driving while intoxicated and taken to jail.  The officer will, either in the car or at the jail, ask for a specimen of your breath or blood.  The officer will explain that, if you refuse to consent, that he may obtain a warrant for the specimen.  He may also explain to you that your driver’s license will be suspended for a period of time if you refuse to provide a specimen.  You should continue to refuse all such tests regardless of what the officer says.  If the officer returns with a warrant, you must comply with the orders of the Court, but you should again make your lack of consent clear and unequivocal.  Demand a lawyer immediately and refuse to answer any questions without an attorney present.

            In most cases, you will be taken either to the city or the main jail and held.  Jail will suck, but it’s not nearly as dangerous as MSNBC documentaries make it out to be.  A bond will be set either that evening or the following morning after you have seen a magistrate.  The typical bond for a misdemeanor DWI is between $500.00 - $2,500.00.  A felony case will typically be far more expensive.  You can expect the conditions of your bond, such as an interlock device or regular check-ins, to suck as well.  However, know that by following these instructions you have done all in your power to make the state’s case against you as weak as possible.  While nothing guarantees an acquittal, following the guidelines set forth in this article makes and acquittal – ora reduction to a less serious charge like reckless driving or obstructing a highway – a far greater possibility. 






Jason L. Van Dyke is licensed to practice law in Texas, Colorado, Georgia and Washington D.C.  He has been practicing in the areas of criminal defense, debt collection, and real estate law for ten years.  He is Sergeant at Arms of the Dallas/Fort Worth chapter of The Proud Boys and lives in Crossroads, Texas.  The views expressed in this article are general in nature and should not be used or construed as legal advice for any specific situation

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