What to do if You’re Pulled Over for a DWI/DUI?

In order to make an informed decision if you find yourself in this situation, you need to have at least a basic knowledge of the constitution and the laws of your state. It is also helpful to analyze the progression of a typical DWI/DUI case.

Reasonable Suspicion

In order for an officer to stop someone, whether it be a driver or any other pedestrian walking down the street, they need to have reasonable suspicion that a crime has been committed or is currently being committed. Reasonable Suspicion is present “when law enforcement officers have knowledge of specific and articulable facts which, when taken together with rational inferences from those facts, create a reasonable suspicion that a person has or is about to commit a crime.” State v. Hernandez, 954 S.W.2d 639, 642 (Mo. W.D. 1997) (citing to Terry v. Ohio, 392 U.S. 1, 32 (1968)).

If an officer testifies that there are facts present which would lead him to believe that you were driving in an intoxicated condition, i.e. swerving, driving at inconsistent speeds, crossing the center line, etc., then they have reasonable suspicion that you are under the influence and can conduct an investigative detention to confirm or dispel their suspicion.

Even if the officer doesn’t have reason to believe you are intoxicated prior to the initial stop, if after approaching your vehicle, they observe facts or circumstances leading them to believe that you are intoxicated, i.e. bloodshot eyes, smell of intoxicants, etc., they will likely conduct further tests.

Probable Cause

In order for the officer to make a warrantless arrest, they must have probable cause. U.S. v. Watson, 423 U.S. 411 (1976). “Probable cause” is defined as “knowledge of facts and circumstances sufficient for a prudent person to believe a suspect is committing or has committed an offense.” Beck v. State of Ohio, 379 U.S. 89, 91 (1964); State v. Tokar, 918 S.W.2d 753 (Mo. 1996). Probable cause is assessed in light of the totality of the circumstances presented to the arresting officer, and the circumstances must warrant reasonable belief that the arrestee himself has committed an offense. Maryland v. Pringle, 540 U.S. 366 (2003).

Miranda Warning

Briefly lets analyze the dynamics involved in a typical confrontation between a police officer and their suspect. Most officers are very polite and act like they are your buddy, of course they are sorry you’re in this situation and are simply trying to help you out. This is how the officer is often able to convince their suspects to willingly cooperate in their investigation. It’s amazing to me how many people give up information critical to their case, in the belief that the officer will appreciate their honesty and cut them a break. Not to say that all officers use this tactic, but it is widely used because it does seem to work very well.

Essentially this is the reason for the evolvement of the the “Miranda warning.” Below is an excerpt from the famous case Miranda v. Arizona, 384 U.S. 436 (1966), which discusses these dynamics in play during an officer’s interrogation.

“‘Joe, you probably didn’t go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that’s why you carried a gun for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that’s when you had to act to save your own life. That’s about it, isn’t it, Joe?”

The courts have recognized the undue influence that police officers have over their suspects in a criminal case, thus giving rise to the “Miranda warning,” requiring the officer to apprise you of your rights against self-incrimination, as guaranteed by the fifth amendment to the United States constitution. There is a lot of confusion about when this protection kicks in, it should be noted that the Miranda warning is not necessary until the officer conducts a “custodial interrogation,” broadly defined to be any time that you are in custody (i.e. objective determination that you don’t feel like you are free to leave) and in which the officer is trying to elicit statements and/or a confession from you. A seizure can be accomplished by actual physical restraint or by a sufficient show of authority such that, under all the circumstances, a reasonable person would have believed that he was not free to leave or otherwise terminate the encounter. Kaupp v. Texas, 538 U.S. 626 (2003); State v. Richmond, 133 S.W.3d 576 (Mo. App. S.D. 2004). There are many exceptions to the Miranda rule though, so it’s hard to rely on this to keep an incriminating statement out of evidence.

Evidence used in DWI/DUI case

In a typical DWI/DUI case, if taken to trial, the officer will testify to what he witnessed prior to pulling you over, and the results of various tests which may have been conducted to determine your impairment. There also may be video and/or audio from their cruiser cam and microphone at the scene. Far and away the strongest evidence is that of the breathalyzer machine used to determine your BAC at the station. These records, if correctly obtained from a working machine, which must be in compliance with the rules of the Missouri Department of Health, are very persuasive to a judge or jury.

Field Sobriety Tests

In a typical DWI/DUI case, the police officer will conduct the following tests:

Horizontal Gaze Nystagmus test. This is the test where they ask you to follow a pen or other object while they move it left to right, to determine whether your eyes are tracking evenly and smoothly.

Walk and Turn test. This is the test where you are asked to take a designated number of steps down an imaginary line, at the end you are asked to pivot on one foot and turn around and follow the same imaginary line back to the start, the whole time keeping your hands at your sides and keeping your body from swaying.

One Leg Stand test. This is the test where you are asked to stand on one foot, with the other foot suspended in front of you, and are asked to stand in a stationary position keeping your hands at your sides and not swaying.

The officer may also ask you to say the alphabet backwards or count to a specific number. The results of these tests are all recorded by the officer on his final report, and he testifies to the results at trial if necessary.

To Blow or not to Blow

This is one issue that attorney’s are hesitant to advise their clients on due to the implied consent laws which have been enacted in all states. Essentially the implied consent law in Missouri provides that you must consent to a breathalyzer or other test to determine your blood alcohol content when properly requested by a police officer, and if you refuse your license will be automatically suspended for one year. It should be noted that they legally can only perform a test to determine your BAC twice in Missouri, see RSMo §577.020(2) However, this only applies once you are under arrest. RSMo §577.021(3) provides that “A test administered pursuant to this section [i.e. prior to arrest with portable breathalyzer] shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.”

The question of whether to blow or not to blow can only be answered on a case-by-case basis. RSMo §577.020(1)(1) applies only “[i]f the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition…”

So I’m going to leave this one up to you. If you don’t blow you WILL lose your license for a year. Of course you can appeal this decision, and a judge will decide whether there is enough evidence to prove that you were driving over the legal limit. Refusing to blow is a risky decision and it is very dependent on the facts of each case, therefore I am going to respectfully decline to answer this question.

If you refused the test, you must file a Petition for Review in the Circuit Court within 30 days. To extend your 15-day permit, you must also request that the court grant a stay order allowing you to drive until the case is over. The judge determines whether the police had reasonable grounds for your arrest, and whether you truly refused to take the test. If you lose, your license will be revoked for a year. Reinstatement requirements may include alcohol counseling, SR-22 filings, a reinstatement fee and possibly ignition interlock.

Putting all of this Information Together

In order for the arresting agency to successfully prosecute you for a DWI/DUI, they have to prove their case. They have to show that you were driving while intoxicated (above .08% blood alcohol content) beyond a reasonable doubt. All of the evidence observed by the officer or taken from the scene WILL BE USED to prove this.

So what can you do? First you need to realize that you are not required to submit to any field sobriety tests or otherwise make any statements in response to the officer’s questions. Be polite, roll down your window enough to give them your driver’s license and proof of insurance. If they ask you if you have been drinking you do not have to answer them. Exerting your rights under the fifth amendment (right against self-incrimination) cannot be used as evidence against you in court. The field sobriety tests were created to make people fail; I have yet to see a police report where the defendant did not fail every test, even if they looked like they passed with flying colors on the video.

This may be a hard thing to do, especially when you’re looking at paying out thousands of dollars for court costs, classes, SR-22 insurance, and legal fees. The best way to think about it is in hindsight and by comparing the same case with different facts.

Case Comparison

Case 1: Willing Cooperation. Imagine that you have had one too many, and are driving home after a long night out with friends. Halfway home you make a wrong turn, and in an effort to make your way back to a familiar road you see lights and hear sirens. Busted.

The officer arrives, and very politely asks for your license and registration. You roll the window down all the way and he shines his flashlight in your eyes, asking if you have had anything to drink tonight. You don’t want to upset him, so you tell him you have had a few beers and maybe one or two shots. Next thing you know the officer asks you to step out of the car and perform a series of sobriety tests. Of course you fail every one of them, you’re then cuffed, take the breathalyzer at the station, and spend the night in jail.

Case 2: Reluctant Cooperation. Imagine the same scenario, once again the officer arrives, politely asking for your license and registration. You roll the window down just enough to give the license and registration and stare straight ahead. Officer can’t see your eyes because you aren’t looking at his flashlight, and can’t smell intoxicants (which they always seem to in these cases) because your window is only rolled down two inches. He also can’t see much in your car because he isn’t able to lean his head/flashlight through your window. He asks if you have had anything to drink tonight, and you politely ask him why you were pulled over, whether you are under arrest or free to leave. Here the officer will likely do one of two things, angrily ask you to step out of the car, or runs your license and registration to see if you have any outstanding warrants. Assuming he tells you to step out of the car, he will then likely instruct you to perform a series of field sobriety tests and/or a portable breathalyzer. Once again you tell the officer that you are refusing to perform these tests and are exerting your fifth amendment rights. Once again you’re cuffed, take the breathalyzer at the station, and spend the night in jail.

Comparison. It’s difficult to refuse to cooperate with a law enforcement officer, because the suspect is generally hoping the officer will be nice and let him off with a warning. Chances are the driver in both of the above scenarios will be arrested, so it’s best not to perform these incriminating tests. The difference is that in Case 1 the officer has gathered an enormous amount of evidence, making it much more difficult for his attorney to defend against these charges.

Evidence in Case 1:

  • U-turn and crossing center line;
  • Bloodshot eyes;
  • Moderate to strong smell of intoxicants;
  • Speech (slurred, confused, incoherent, stuttering, mumbling, etc.);
  • Balance/Walking (uncertain, swaying, staggering, stumbling, falling, etc.);
  • Failed horizontal gaze nystagmus test (no smooth pursuit, distinct nystagmus at maximum duration, onset before 45 degrees with some white showing);
  • Failed walk and turn test (arms out to side, misstep twice, swaying, hops, turned to wrong side, etc.);
  • Failed standing balance test (arms out to side, swaying, put foot down twice, lost balance, counted too far, etc.);
  • Admitted drinking, 3-4 beers and 2 shots;
  • Breathalyzer results.

Evidence in Case 2:

  • Bloodshot eyes;
  • Faint to moderate smell of intoxicants;
  • Breathalyzer results.


As you can see, the entire process is used by the officer to build up enough evidence in their case with which to obtain an easy conviction, and you, the cooperating defending, is essentially handing this evidence over to them. In the first scenario, any prosecutor or judge is going to look at the facts of the case and agree that there was certainly probable cause to arrest the driver of the vehicle. In the second scenario, because the driver refused to perform the field sobriety tests, there is a much better argument that the there was no probable cause to arrest and the breathalyzer results should be suppressed. If the case is taken to trial, absent a miraculous malfunction of the breathalyzer, it would be extremely difficult to secure an acquittal in the first scenario, but the second scenario would likely have a much more favorable outcome.

Make sure you ask the arresting officer to call your attorney as soon as your are arrested, briefly describe to your attorney the facts of the case, while at the same time making sure not to say anything incriminating, as the phone calls from jail are usually recorded.

The next day, make sure to write down everything you can remember about the days events, who you were with, where you were, the events leading up to the stop and your arrest, how and where evidence was collected, what anyone at the scene said, who was in your car, what happened at the station, etc. Make sure to give all of this information to your attorney while your memories are still fresh of the event. Often times it’s possible that the smallest fact could turn out to be the deciding factor in whether you are convicted or acquitted.

KNOW YOUR RIGHTS, you don’t have to do everything the officer says just because he is in a position of authority. Stand your ground, police know you have these rights and are hesitant to violate them, because they know your case could be tossed. You have the right to privacy, the right against self-incrimination, the right to be free from unreasonable searches and seizures on your person, in your vehicle, and in your home. Make sure the officer has reasonable suspicion to stop you and conduct his investigation. Make sure he works for the probable cause to arrest you.

If you have been arrested and charged with a DWI/DUI or an alcohol related offense please contact Bill Kenney Law Firm at (816) 842-2455 or send us a message on our Contact Page.

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  1. Russ Ehrlich  May 15, 2012

    Hey, I read this… good info! I like your webpage BTW.

    Uncle Russ ;-D

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