Nevada DUI Defense Part 2: “Sir, Have You Been Drinking Tonight?”
In our first article discussing DUIs in Nevada, we discussed why you should use ride-share each and every time you go out. In this article, I discuss what you should do if you have had a drink and are stopped by a police officer.
Note, this article in no way condones drinking and driving whatsoever. And is not intended to be legal advice. Attorneys are not peoples' parents or here to preach what is right or wrong. Attorneys are simply conduits for laypeople to have access to the law, legal knowledge and know what their rights are. Bottom line, if you have only one drink, do not get behind the wheel.
Some time ago, I was having a conversation with an acquaintance of mine. At the time, I was working as an associate prosecuting attorney. He told me that he was pulled over the night before after drinking two beers. The officer approached his window and asked, in a friendly tone, if he had anything to drink that night. My acquaintance said he "had a couple of beers". He blew a .04 and was allowed to leave.
What’s my point? Without realizing it, my acquaintance fell for the police officer’s trap. A police officer can not conduct a DUI investigation unless he or she possesses “reasonable suspicion” that someone is driving while intoxicated. In simple terms, this means the police officer has a reason to suspect someone is under the influence (NRS 484C.105).
For example, suppose a police officer pulls over a driver for driving five miles over the speed limit. At this point, the officer does not have reasonable suspicion to believe that the driver is intoxicated. Now, suppose that the driver was also swerving all over the road. This additional fact provides reasonable suspicion that driver is intoxicated since swerving is a classic sign of impairment.
But police officers possess a secret weapon to obtain reasonable suspicion if at first he or she does not possess it. If the driver is going five miles over the speed limit (but not swerving or doing something else indicating intoxication) the officer has reasonable suspicion to conduct a DUI investigation if the driver admits to having something to drink (even one drink) that night.
In fact, it is almost routine for a police officer to ask any vehicle they stop (during the night) if the driver has been drinking. Experienced officers pose the question in a very friendly way. They count on the incorrect belief by the driver that if he or she is honest with the officer, the officer might look the other way. This is a fatal mistake. Police officers (like everyone) want to fulfill the duties of their job. Their job is (among other things) to cite and arrest people driving under the influence. A nice police officer may look the other way for a driving infraction (if the driver is nice), but none will for a serious DUI offense. They aren’t your friends, nor should they be.
Here is the point: If you are pulled over and know you have had at least one drink, there is no advantage in responding to the “sir have you been drinking” question in the affirmative. In fact, it can destroy a legal defense you may have had by ignoring the question. Let’s say someone is pulled over for going five miles over the speed limit. The officer then immediately pulls the driver out of the vehicle and forced him or her to consent to a blood draw. If the officer did not have reasonable suspicion to force the blood draw, any incriminating evidence from the draw can be excluded at a subsequent trial resulting in a not-guilty verdict. But if the driver admitted to drinking, that defense is gone resulting in a guilty verdict.
I am not recommending you lie to the police officer (in fact doing so could hurt your credibility in front of the court). Everyone has the right to remain silent, but it's up to that person to utilize this right.
Again, never drink and drive. This information is meant for educational purposes only. Should you be cited with DUI, please contact an attorney.