How to Conduct Yourself During An OUI Investigation

By Matthew Nichols

January 21, 2015 May 29, 2016

Almost no one ever anticipates or plans for what to do when they are driving and suddenly the blue lights come on behind them.

The initial feeling is panic, soon to be followed by racing thoughts and fear. The heart that lies beneath your lapel, or your three point restraint, pounds a bit harder if only for a moment.

Those visceral reactions are normal even when you pull to the right and watch the cruiser speed past you. In those instances, the panic and fear subside, the heart beat returns to normal relatively soon.

Now imagine that the officer pulls in behind you.

The heart beat increases a bit; racing thoughts speed up a tad. “What did I do wrong? Was I speeding? Is my registration over-due? What will this do to my insurance rate?” It is fairly intimidating to be approached by a uniformed, armed officer holding a “ticket book” even for a minor traffic violation.

But, now imagine the same scenario only add to the fact pattern that you have been drinking alcohol. You can multiply the visceral effects by at least tenfold.

How do I conduct myself during the inevitable OUI investigation?

Stay calm. Do not exit your vehicle unless and until you are told to do so by the officer.

Police, especially these days, are vigilant, if not hyper-vigilant, about apparent aggressive moves by those whom they detain. Appreciate the officer’s view point. He is approaching an unknown person initially with no back up officer. It is usually dark out and he has no idea what type of person he is about to confront.

Stay in the car. Keep your hands visible (on the steering wheel is fine). Do not lunge to grab things from under the seat or behind you.

It is prudent to have your license, registration and proof of insurance ready when the officer reaches your window. Keep them all handy so that you do not have to recklessly fumble and search for them upon the officer’s request.

Fine motor skill impairment and/or confusion in attempting to locate requested paperwork is one of the first signs of impairment for which the officer is looking (erratic driving and the odor of alcoholic beverages are the first two; bloodshot eyes are third).

The officer will ask if you have been drinking or how much have had to drink. That is usually because he smells the odor of alcoholic beverages coming from the interior of your vehicle. You are not required to answer this question.

But, if you chose to answer, and you have been drinking, it is best to admit consumption. A denial, under those circumstances, will be admissible at trial and argued, by the DA, as “consciousness of guilt”. I have ways to defend the initial denial (example: erroneous public service ad “Drink, drive, go to jail” is a clear misstatement of the law).

Admissions are better than denials of drinking, but they invariably lead to follow up questions like “When?” “Where?” “How much?” In a state of panic, fear, etc., you may not be prepared for that type of interrogation. Silence is golden, but it is admissible at trial. So is the fact that you have an absolute right to remain silent.

The officer will then ask you to perform a series of “field sobriety tests” (FSTs) to make sure you are okay to drive. In reality, the officer is attempting to gather as much information, evidence, that you were OUI (driving while your mental or physical faculties were impaired to any extent or to the slightest degree).

FSTs are extremely difficult. The officer will have spent an entire week of classroom study at the Maine Criminal Justice Academy (MCJA) learning about how to precisely administer and “score” FSTs before he goes out to practice them in a well-lit gym or sterile parking lot with his fellow officers. He will have practiced them countless times at the MCJA and elsewhere without ever doing them under the threat of being arrested if he made any mistakes. He will use that “baseline” to evaluate your performance.

Under Maine Law, the performance of FSTs is voluntary. The officer may not compel or coerce you into doing them. You may refuse to engage in that activity. Your declination to participate in that portion of the OUI investigation will be admissible at trial. But, like your silence, your attorney will fight for a favorable jury instruction: that the jury may not draw any adverse inferences or even consider that declination on the issue of guilt.

For more information on FSTs see my previous article entitled : “Field Sobriety Tests (FSTs)“.

Next comes the likely arrest and the request by the officer that you submit to a chemical test (almost always breath, sometimes blood or, in the case of a drug/OUI, urine test). For more information on this phase of the investigation, see my previous article entitled “Should I Refuse a Sobriety Test?“.

The foregoing walks you through the process and provides some general advice on how to conduct yourself during an OUI investigation.

Here are some specific “do’s and don’ts” when you are pulled over.

Do:

• Always be polite. Always address the officer as “sir” or “ma’am “.
• Let the officer feel like he is in charge (during this phase of the case, he is in charge). Limit your words; slurred, rambling speech is indicia of impairment.
• Even if you refuse to perform FSTs and/or a chemical test, do so in a non-confrontational manner.
• Stay calm, cool and collected no matter how stressed you may be; this is not the end of the world; an arrest is a far cry from a conviction.

Don’t:

• Watch the officer demonstrate a FST and say “Are you kidding? I couldn’t that if I was sober”.
• Do not argue with the officer about Constitutional Law, Miranda, right to counsel, whether or not you passed the FSTs or anything else–there is a time and place for that; it is not during the investigation.
• Do not ask the officer for a “break”.
• Do not tell the officer that you are going to hire a lawyer and get this whole case “thrown out of court” and/or cost him his job.
• Do not chastise the officer for hassling you when he should be “out chasing real criminals”.
• Last, but not least, do not try the “do you know who I am?” tactic, which includes name dropping of other cops, lawyers, judges, politicians, etc. This is obviously a non-exhaustive list.

You are not going to win your case on the street. You are not going to intimidate the officer into dropping the charges nor are you going to smooth talk your way out of a charge. By attempting to do so, you will only hurt your case. Assume that everything you say will end up in the officer’s report, sometimes out of context.

As always, this is generalized information with some specific “do’s and don’ts”. Each case is different . Each case is unique.

For a free consultation to discuss your unique case and circumstances, call me at 207-879-4000 or visit me at 1250 Forest Avenue, Portland, Maine 04103. The website is right here at www.nicholschurchill.com.