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What Are My Rights if I Am Pulled Over for OWI?
By Ray Dall’Osto
Being pulled over by a law enforcement officer for a traffic stop is stressful; however, the possibility of being arrested for OWI (Operating While Intoxicated, also called DUI) can make things much worse. If you are pulled over for a traffic stop or on suspicion of drunk driving, it is important for you to understand your rights. If you don’t know how to assert your rights, you have none.
The Right to Avoid Self-Incrimination
The Fifth Amendment to the United States Constitution gives everyone the right to refuse to answer questions of law enforcement and government investigators; the answers to which may tend to incriminate oneself. During a traffic stop and later at the police station, you can politely decline to answer an officer’s questions about whether or how much you have been drinking, what drugs you might have had, and the other questions set forth in the alcohol/drug influence report interview protocol. You can also assert your Sixth Amendment right to legal counsel and not answer questions until you are allowed to call and speak with your lawyer.
The Right to Refuse Field Sobriety Tests
During an OWI stop, a police officer will likely ask you to step out of your vehicle and perform certain field sobriety tests (FST) designed to supposedly indicate whether you are impaired. These tests (walk and turn, one leg lift, and horizontal gaze nystagmus) are used to confirm an officer’s suspicions and establish probable cause for the arrest of the driver. You are not required or compelled by law to undergo the FSTs, and you can politely decline to take them if you believe such is in your best interest.
The Right to Refuse Breath Tests
Two types of breath tests are commonly used in OWI cases, the preliminary breath test (PBT) and the Intoximeter test. The PBT test is performed at the scene, right after the driver is stopped, and the Intoximeter test is offered at the police station. Sometimes alternative blood tests are requested, which should only be done at a medical facility. While Wisconsin’s “implied consent” law requires drivers to submit to chemical testing of their blood alcohol level after an arrest for OWI (at the police station or medical facility) or else face license revocation, drivers are not required to take the PBT administered at the scene of a traffic stop. When asked to take a roadside PBT test, drivers have the right to decline to do so.
The Right to Refuse a Search of Your Vehicle
The Fourth Amendment to the United States Constitution protects people from unreasonable and warrantless search and seizure. A police officer in a traffic stop cannot search your vehicle without probable cause or without your consent. That doesn’t stop some police officers from asking drivers if they have any drugs, guns, or cash in their vehicles. A driver has the right to politely decline if an officer asks to open your glove compartment or console, the vehicle trunk, to look through and under the seats, or to allow the officer to perform any other type of search of the vehicle or the driver’s person.
The Right to Consult with and be Represented by an Attorney
Since the average person is not closely familiar with the specifics of OWI laws or the legal rights and processes involved in a criminal case, it is important to remember that everyone has the constitutional right to legal representation and to consult with counsel. In traffic and OWI stops and arrests, law enforcement officers often try to avoid this, and the Miranda rights are not read to a driver until well after he or she is taken into custody. Don’t be afraid to assert your right to counsel – ask to call your lawyer and state that you will not make any statements, answer questions, or consent to any searches until you have spoken with your attorney.
Contact an Experienced Milwaukee, Wisconsin, OWI Defense Attorney
If you have been arrested for a serious traffic charge, OWI or vehicle-related crimes, the skilled and experienced attorneys at Gimbel, Reilly, Guerin & Brown, LLP can provide you with the advice and defense that you need, working to mitigate and minimize the drastic consequences that such arrests and charges can have on your life, your freedom, and your driver’s license. Contact our Milwaukee, WI criminal defense lawyers today at 414-271-1440.
Sources:
http://wisconsindot.gov/Pages/safety/education/drunk-drv/ddoffenses.aspx
http://wisconsindot.gov/Documents/formdocs/sp4348.pdf
https://www.huffingtonpost.com/victoria-yore/5-things-to-do-if-you-are_b_10416680.html
