Cedar Rapids OWI Lawyer Best Practices: What to do when pulled over during a traffic stop

by David A. Cmelik Law PLC

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Your heart races. Your adrenaline begins to pump through you as you realize that a marked police car has activated emergency top lights to conduct a traffic stop on you in Cedar Rapids, Iowa City, Waterloo, or other Iowa community. They’re not going around you—your first hope. And when you pull over to allow them to pass, they pull in behind you. What next?

First, don’t panic. Most traffic stops are for equipment violations or scheduled violations like speeding or improper turns. While it’s not ideal to be cited for a scheduled violation or “fix it” ticket, it’s better than being arrested for something else. But what if you are concerned Officer Friendly will escalate the traffic stop to an OWI investigation and you have consumed alcohol? Again, don’t panic.

The truth is that law enforcement officers in Cedar Rapids and Iowa in general have been taught to investigate drunk driving from the moment that they spot your “vehicle in motion,” the first phase of OWI investigation. Law enforcement officers in Iowa are scrutinizing your driving performance and gathering evidence for a potential OWI investigation. So what should you do in that situation?

Well, emergency top lights are a command to stop, so that’s your first move. You must yield to emergency vehicles that show a visible light and/or emit an audible siren. To do otherwise could lead to a charge of failure to yield to an emergency vehicle or, worse, eluding. So, yeah, your first move is to stop.

When the law enforcement officer approaches the car, it’s a good idea to have your hands on the steering wheel at ten and two to put the officer at ease that you are not armed or reaching for a weapon. This isn’t required but traffic stops are considered very dangerous for law enforcement officers. They are alone in the field and at the roadside. Law enforcement officers are armed but they are increasingly concerned that the motorist is and armed and, worse, dangerous fugitive. Typical traffic stops are not “felony” stops—in other words, where officers “draw down” on the motorist by unholstering a service weapon (gun) and aiming it at the driver, usually with other officers to assist. If this happens to you, do exactly what the officer tells you to do. A felony stop is a serious incident and officers are trained to treat the motorist as if they are committing a felony and possibly seeking to evade arrest. They will authoritatively shout commands and the driver and passengers should do exactly what they are instructed to do and no more or less. But that is not a typical situation.

At this point, Officer Friendly usually asks if you know why he or she pulled you over and they are courteous as if to conduct themselves in a professional manner with a “customer.” You can answer no. If you develop an attitude and tell the officer they have no reason to pull you over or even sarcastically tell the officer to tell you why they pulled you over, things could get worse. Law enforcement officers want to control the roadside traffic stop. They believe they wrote the script and if you don’t follow it to the letter, you’re being insubordinate. The best response is usually “No, officer.” The truth is that you cannot truly speculate why the officer pulled you over—you may have an idea but you can’t get inside his or her head. If you were asked that question in court, someone would object and tell the judge, “speculation.” So, an appropriate answer is, “No, Officer.” To admit your guilt and say, “you pulled me over because I was speeding, driving recklessly, and otherwise driving as if I am impaired,” well, that’s an admission, and it will be used against you. Hopefully, that’s not the case. But then again, you’re reading a blog about OWI and criminal defense in Cedar Rapids, Iowa.

The officer usually will tell you at this point that you were all over the road, if that is the case, or that you were speeding, made an improper turn, or have some kind of equipment violation.

They will next ask you for your driver’s license registration, and proof of insurance. While you are fumbling for it, they may engage you in further conversation. The request for multiple documents is a so-called divided attention task. They want to know if you can get your documents without “fumbling” in your wallet and they want to document it if you do. If you hand them an expired registration, expired insurance card, or, worse yet, an expired driver’s license, they will surely make a note of it in their report. More importantly they want to note if you are all thumbs with your documents because they believe, rightly or wrongly, that someone who is impaired will be “all thumbs” when they are searching for these three items.

Keep your license, registration and proof of insurance together in a single envelope or zip lock bag and hand them to the officer in one fell swoop. If you do keep them in an envelope or clear plastic zip lock bag, take them out of the bag and hand them all at once to the officer. If you don’t, they’ll tell you to take the documents out of the envelope or that they didn’t ask you for a bag. They’ll suggest you did not following their instructions in their report.

Now, if you have consumed alcohol at this point, Officer Friendly will suggest they smell the alcohol, they will see whether your eyes are bloodshot and, even though it is not a sign of alcohol consumption, “watery.” They will pay attention to your speech to discern whether it is “slurred” or “thick tongued.”

They will even ask you to admit to whether you have been drinking. You’re not in custody during this traffic stop so you’re not entitled to a Miranda warning, but you can stand on your right to remain silent. Rather than lie to the officer, you might say, perhaps awkwardly, “I’ll plead the fifth on that one.” I realize that it depends on the officer whether this is an “acceptable” response, but it is one to which you are legally entitled and, as an answer, it may not be used to contribute to reasonable grounds to believe you are intoxicated. You may get a response such as, “you can do that but I’m just looking for honesty here.” If you truly have only had one, two, or, the favorite all time response, “a couple” drinks, answering this question is a personal choice that will nevertheless contribute to reasonable grounds to believe you are intoxicated. Officers have been down this road before and those who have had far more than one, two, or “a couple” drinks, often use this as a fall back answer.

The officer is going to have you perform standardized field sobriety tests here anyway. They cannot use your invocation of the fifth amendment against you and it is by far the best answer to the question when you have consumed any amount of alcohol, albeit there is no good answer.  

The officer will instruct you to step out of the car to perform so-called standardized field sobriety tests (SFSTs). At this point, you have a decision to make. Technically, the tests are supposed to be voluntary but Officer Friendly barely phrases it that way. Sometimes they dangle the carrot in front of the test subject like this: 

“I’d like to make sure you’re safe to continue on your way, make sure you’re safe to drive, so could you step out of the vehicle for me?” What do you do in that situation? They have made it seem so reasonable that they are “making sure you are safe to drive.” If you engage the officer at all, tread carefully. You do not want to seem uncooperative, but you also don’t want to contribute to his or her reasonable grounds to invoke implied consent.

The exchange here is very nearly one way. If you do not relent, the officer has been instructed to needle you, “it’s my job to make sure you’re safe to drive. At this point, I smell the odor of alcohol and you have admitted to drinking. I believe your speech is slurred and your eyes are bloodshot and watery.  You can understand my position, here, right?” Of course, they’ve gotten to a yes answer here and they want you to relent to the testing.

A middle ground is to consent to have them demonstrate and instruct you on the testing and you can make a decision for each test after they instruct you to begin the test. They will instruct the subject on each of the tests.

They include the horizontal gaze nystagmus (HGN), the Walk and Turn (WAT), and the One Leg Stand (OLS), as well as the Preliminary Breath Test (PBT). However, they can also include ABC and numeric recitations. A drug recognition expert can administer additional tests—usually at the stationhouse following the evidentiary Datamaster DMT breath test.

Note that, neither individually nor combined, while the tests are the best law enforcement has produced as far as standardized roadside testing, they are not 100% accurate.

The officer will ask you to identify any physical impairments like injuries, genetic defects, or operations that may affect your ability to conduct the tests. At this point, you don’t know what the tests are but you should identify every possible physical ailment and operation you have had that affect your ability to perform physical agile tests. If you have a back injury—describe it. But be mindful that the officer may follow up as to whether you are taking medication for such injuries and there is no prescription drug defense to OWI in Iowa if you mix any amount of alcohol with such prescription.

Most officers are fair minded when they ask you to complete the testing. If you truly have an injury that will interfere with Walk and Turn or One Leg Stand, they will pass on that test and go on to the next.

At some point, they will typically ask for a preliminary or portable breath test. Refusal of this test assures your detention and transport to the Datamaster DMT duty location—where the officer will invoke implied consent and request a bodily specimen, usually breath since the Datamaster DMT is their evidentiary breath machine. In the event that the officer believes a substance other than alcohol is impairing the test subject, they may begin DRE testing or otherwise request a urine and/or blood sample. This is allowable. However, the officer cannot revoke your license for refusal of a blood test if you have already consented to DMT or urine testing.

If you or a loved one has been arrested for Operating While Intoxicated (OWI) in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, commonly called DUI in other States, contact David A. Cmelik Law PLC at https://www.daclawfirm.com. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the internet does not establish an attorney-client relationship.