A quick personal note: if you are in a position where you are driving while under the influence, then you need help. Your decisions with drugs or alcohol have affected your life, whether you admit it or not. You may need a substance abuse or dependence evaluation, counseling, or other treatment. The goal of this article is to provide information on how law enforcement and the FAA deal with DUI/DWI, both as a warning and in hopes you’ll never have to experience it firsthand.
Based on my own experience as a former police officer arresting people for DUI/DWI, prosecuting DUI/DWI as a former prosecutor, and defending DUI/DWI cases now as a defense attorney, Part I of this series will discuss some suggested practices if you’re stopped by the police for suspected driving under the influence, whether you’ve had anything to drink or not. Part II will discuss the actions that will come next from the FAA if things escalate. DUI/DWI laws vary by state, but there are some practices to consider regardless of your jurisdiction. For specific state legal advice though, you should consult with a local attorney. And as every good lawyer quickly caveats, please note that I am not your lawyer, nothing herein creates an attorney-client relationship, and nothing in this article constitutes legal advice.
Being pulled over usually gets the adrenaline going even for someone who is stone-cold sober. You might start to feel anxiety because you know that if you are arrested on suspicion of DUI/DWI, even if the cop was wrong and everything was later dropped without any action being taken against you, then that arrest must be reported to the FAA on your next medical application. If you’ve had even a single drink, and are sure you’re well under the legal limit, you might be more nervous still. Those are the thoughts, perhaps among others more explicative, that go through your mind when red and blue lights start flashing behind you. There is perhaps no greater sinking feeling as you see your driver’s license, your bank account, your freedom, your reputation, and your airman’s certificate hang in the balance of what happens next.
First, know this: you are being investigated for a crime, particularly, DUI/DWI, when you’re stopped by the police at night, around a bar area, or anytime an officer’s intuition seem to indicate he may be facing an impaired driver. As a cop, during bar close particularly, I would patrol downtown and make traffic stops for a burned-out license plate light, or maybe a wide turn, or maybe a slightly loud muffler to look for an intoxicated driver heading home. I would stop a driver for some technical violation and see if I would find indicators of impairment. Sure, I went fishing, and the legal definition for that is called a pretext stop; it’s perfectly legal.
After the proverbial cherries-and-berries go on, how did you react? Did you take too long to stop? Did you stomp on the brakes? Did you stop 3 feet from the curb? At this point, everything will be on camera, and everything you do will be scrutinized. Yes. Your heart is pounding out of your chest and you’re nervous but collect yourself and think of kicking out the crab on a 20 knot crosswind landing—it’s time to collect yourself and keep cool. Here is what you do: you pull over like a reasonable human being. Do not drive 3 blocks while collecting your thoughts; that’s called “suspicious.” Pull over to the curb at a reasonable time when the officer turns on his lights, but also don’t stop in an intersection and although it should go without saying: don’t run over the curb.
The officer will likely take a moment to run your plates if dispatch hasn’t already run them and make sure he’s safe to exit. Use this time to your advantage. He will ask for your license, registration, and insurance; have them ready by the time he gets to the window. If you don’t, he’ll be watching and analyzing you as you do this. This phase can be brutal. I often had people give me their credit cards or drop the documents or fumble with things. Again, that’s called “suspicious.” The officer will also be readily looking to smell alcohol on your breath and in the car. I think it’s suspicious to just crack your window, and if you act suspicious, the officer will just ask you to step out of the car which you must comply with. I think it’s best to roll down the windows early and fully. If you’re asked to step out, it’s often because I’m taking a deeper look at you to analyze your intoxication. The goal is to avoid that, so don’t be “suspicious.”
A lot is happening as the officer is standing by your window. He’s looking at your mannerisms, analyzing your speaking, looking for open containers, and trying to view your eyes for signs of impairment. You want to minimize it all. Your documents are already out so that’s step one. He’s going to ask you questions to get you to talk; give short concise answers. Know this right now: what you cannot do is talk yourself out of something, so be quiet. At this moment, you’re not as smart as you think you are. Answer any question with short concise answers. Don’t look and talk straight at the officer. His spotlight is probably in your mirror to cover his approach to your car, and his flashlight is probably pointed at your face. That’s a great reason to look away and speak indirectly to him. How long do you think you can look into a flashlight before your eyes start watering? He wants to say there was an odor of alcohol on your breath and your eyes were “bloodshot, watery, and glossy.” Those words appear in the vast majority of DUI/DWI police reports and develop a cause for further testing.
He’s going to likely ask where you’re coming from and where you’re going to. Two things here: he wants to get you to talk and he wants to see if you admit to coming from the bar. Again, that’s suspicious. The best answer is a reasonable one without incriminating yourself. Think about what’s plausible, short and stick to it. Lying to the police is never good, so sometimes just saying, I’m running late and I’m not answering your questions works perfect too. He’ll ask if you had anything to drink, and the best responses I got as an officer were always: “nope, I don’t drink.” The officer may push. He may prod if he disbelieves you, but know the second you admit to either coming from a bar or drinking, it is all downhill from there. The phrase “I only had “two beers” is comical in the law enforcement community because so many people say that. I have no idea why. But that is very, very “suspicious.”
From this point, it goes one of two directions. Either you will get your driver’s information run (for status and warrants) and either let go with a warning or ticket, or you will be asked for additional testing. Often when I was looking for DUIs around bar close, if I got nothing at this stage, I would cut you free and look for someone else. If you gave me the primary clues of bloodshot, watery eyes, slurred speech, odor of alcohol, admission to drinking, and/or lack of coordination, you were going to be asked to take the Standardized Field Sobriety Tests (SFSTs). The SFSTs are a battery of three field tests to check for impairment. The tests are: the horizontal gaze and nystagmus (an eye test referred to as the HGN), the walk and turn, and the one leg stand. There are other non-standardized tests such as the finger dexterity test, backward counting tests, and the alphabet test, but the validity of these latter tests to judge impairment is not assessed by the National Highway Transportation Safety Administration. As a note, no one is going to ask you to say the alphabet backwards; that’s purely a rumor, just as sucking on a penny makes any difference when taking the breath test.
Let’s assume the worst, and you’re asked to take SFSTs. 99% of my clients make a mistake here and it destroys them. Do not take the Standardized Field Sobriety Tests. Period. I am not aware of any state which mandates a driver do them upon the request of an officer. They are solely used to get incriminating evidence against you. Be aware though officers can be persistent about this and cajoling. They may even say “we’re doing some tests.” My line was this: You feel like you’re okay to drive tonight, right? (Everyone always says they’re okay to drive, because, well, who wouldn’t). Then I would lead the next question: “You have no problem doing a few quick tests just to ensure you’re okay to drive, right? If you pass, you’ll be free to go.” Now I got you thinking, this is your out. This is your escape from this nightmare. You think that because you got a 97% on your private pilot written you can ace this test. The truth is you cannot ace it, and in fact you will probably fail miserably. Even sober people fail them sometimes. Again, you’re not thinking clearly, and you’re also among the 99% of people who acquiesce and agree to do the SFSTs. The odds are though, if you’re even around a .08% bac or greater, you’re going to fail the tests and you’re likely going to be arrested. So do not take them. What you do say is that you don’t have time to take them, and you need to go. At this point, you’re really in hurry to get the hell out of there, right? The officer may ask if you think you’re going to fail them and that’s why you don’t want to take them or ask if you’re hiding something; you repeat the mantra—in a non-agitated, respectful manner.
Describing the SFSTs in detail is beyond this article, but in my experience, they are pretty accurate, particularly the HGN. I typically advise clients not to take them. The goal is to provide as little information as possible to the officer as he intellectually weighs whether or not he has “probable cause” to arrest you for DUI. It also gives your attorney the most ammunition to work with later in the event you are in fact arrested.
At this stage you may be asked to take an onsite screening test. This is basically a portable breath test that is administered roadside. The laws and mandates vary state-by-state and the advice of whether to take the test or refuse the test can vary materially by state and particular circumstances. In North Dakota, my general advice is to refuse the onsite screening test, but later take the “chemical test.” The chemical test is usually the courtroom admissible test and is what is considered someone’s official blood alcohol concentration. You may lose your license in some states for refusing the onsite screening test and some states criminalize refusal of either the onsite screening test or the chemical test.
A critical note: what may be the best course of action from a criminal law perspective may have serious impacts on an airman’s eligibility to hold an FAA medical certificate (to be discussed in Part II). An action against your driver’s license related to a DUI/DWI such as a suspension (including a suspension based on a refusal) must be reported to FAA within 60 days. See 14 C.F.R. § 61.15. Moreover, any DUI arrest will need to be reported on the airman’s next medical application, and the Aviation Medical Examiner performing the exam will be required to defer the application to FAA for further evaluations if the airman refused to test. Consult with a lawyer in your state and with your unique circumstances to determine what is the best course of action.
There are a couple of other miscellaneous items that can help your attorney fight for you. Ask to speak to an attorney twice during the interaction. First, if you are asked to take an onsite screening test (portable breath test), and second before you take the actual chemical test (blood, breath, or urine). Some states provide you a statutory right to counsel and officers are often confused about what to do in these situations. We have successfully defended a number of DUIs on denial of this right. It also can delay things. Usually, if you are in fact arrested, delaying things is a desirable outcome. Some states allow for an independent chemical test, so it can be advantageous to ask for your own blood or breath test. And finally, being flippant, rude, and disrespectful will get you nowhere on the street when you’re stopped. Police officers are human beings who often get treated poorly by the public and you, again, can talk yourself into a hole pretty quick. Make smart decisions when you’re stopped by the police, and let your attorney do the fighting for you on the backend.
I do not want to create the perception that I am encouraging intoxicated driving. The cold truth is that some of us will find ourselves in a situation that could have grave consequences to our freedom, our finances, our reputations, and definitely our aviation lives. Being stopped for suspected DUI/DWI is one of those times. Never drink and drive. Period. Hard stop. Part II will pivot from law enforcement to FAA procedures involving DUI/DWI events and will appear in the following issue.
The opinions expressed in this article are those of the author(s).
Patrick Brooke grew up in Dickinson, North Dakota. He graduated Summa Cum Laude from the University of North Dakota with a Bachelor of Business Administration. Patrick earned his J.D. from the University of North Dakota School of Law, graduating with distinction. While in law school, he served on the Board of Editors of the North Dakota Law Review as the Technical Editor and was the Treasurer of the Student Trial Lawyers Association.
After Patrick completed his legal education, he worked as an assistant bank examiner for the Federal Deposit Insurance Corporation. Patrick then entered private practice. His diverse legal experiences include work as a general practice, family law, criminal defense, professional liability defense, and estate planning. Patrick served as the alternate city judge for the city of Dickinson from 2014-2015 and has been the alternate city judge for the city of Mandan since 2015. He is also the Assistant Sioux County State’s Attorney.
In addition to his work, Patrick is engaged as a community leader serving as a volunteer wrestling coach at Mandan High School. Outside the office, Patrick enjoys golf, is an avid pilot and also teaches piano lessons.
Chris Redmann grew up in northeastern Wisconsin and obtained a Bachelor of Science degree in Political Science from the University of Wisconsin - Steven's Point. He went on to work for the Federal Bureau of Investigation's Counterterrorism Division in Washington D.C. He worked hundreds of counterterrorism investigations in the International Terrorism Operations Section. During his time with the FBI, Chris received the FBI Director's Certificate of Achievement for his steadfast work while assigned to the Counterterrorism Division's Executive Office. While with the FBI, Chris was also deployed to Afghanistan.
Chris later received his juris doctorate at the University of North Dakota - School of Law. After Chris completed his legal education, with a background in criminal investigations, he worked for the Fargo Police Department. He investigated and responded to thousands of calls ranging from DUI and drug offenses to domestic violence and homicide. He obtained advanced training in DUI interdiction, standardized field sobriety tests (SFSTs), Domestic Violence investigation, and completed both investigations and narcotics agent school.
Chris left the Fargo Police Department to work as a prosecutor with the Burleigh County State's Attorney's Office in Bismarck, ND. Chris prosecuted hundreds of cases ranging from minor misdemeanor assaults to complex AA felony drug conspiracy. He attended advanced training in the prosecution of drug offenders and maintained a strong conviction rate in the office.
Chris ultimately left government service to join Redmann Law, P.C. as a partner focusing primarily on criminal defense, governmental entity, and employment litigation. His experience in state and federal investigations and knowledge of local, state, and federal governmental entities provides a base for excellent advocacy and leverage for his clients.
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