Overwhelmingly, this is the question that I have been asked most in my career. This answer will presume that the driver has possibly consumed too much alcohol to drive. The goal is to limit the evidence of intoxication available to the officer and preclude an arrest. In other words, an officer may arrest a suspected driver only if they have a certain level of evidence called probable cause. Everything an officer asks you to do is designed to obtain evidence against you. You must keep the evidence of intoxication below that level.
There are three primary methods to accomplish this objective:
1) Do not admit to any alcohol consumption, and speak as little as possible.
2) Refuse to submit to any eye, balance, speech or coordination tests.
3) Do not take the roadside breath test.
Deny that you have been drinking
An OWI investigation always begins with the question “How much have you had to drink?” No matter what, never admit to having any alcohol. Even if you think it’s obvious that you have been drinking. As soon as an officer hears an admission, he must proceed with an entire OWI investigation protocol. If you say none, and an officer is inclined to do so, he will be much more likely to send you on your way. Any other answer just adds to the level of probable cause.
Do not take field sobriety tests
The next investigative protocol is the administration of field sobriety tests which are typically comprised of five tests: horizontal gaze nystagmus, walk and turn, one leg stand, alphabet and count backwards. Each test is designed for you to fail if you have consumed a slightly intoxicating amount of alcohol. Additionally, they are subjectively being evaluated by a police officer, which means they are looking for reasons for you to fail.
Unless you are perfect, you will fail and just provide more probable cause, so why even attempt? These tests are designed to hurt you and your case, so never take them.
Do not take the PBT
This is the source of the most confusion because it is wildly believed that if you refuse this test, your license will be suspended, which is not true. Your license will be suspended if you refuse after an arrest in the police station, not on the street. The penalty for refusing the PBT on the street is the issuance of a zero point civil infraction and a fine, that is all. Therefore, taking this test will only serve to raise the level of probable cause. The result of this test is often times the primary factor that creates the level of probable cause necessary for an arrest. Over .08 equals under arrest. Unless you are 100% certain you will be below .08, don’t take it.
Next steps if faced with an OWI in Michigan
If you have followed these rules you are much more likely to be under the probable cause level, and legally, the officer must let you go. One of my clients observed these rules and the officer made him park the car and walk, which is much better than a DUI arrest and conviction.
If you are arrested without probable cause, the arrest is unlawful and your case will be much easier to defend by an experienced OWI attorney like me.
If arrested, you will be asked to take another alcohol test, which may be blood or breath, but it will usually be a breath test. Refusing this test will result in a one year license suspension. I advise you to take this test and avoid the license suspension.
These suggestions are only meant to be a general summary of advice, and they may not perfectly apply to every situation. For more details and explanation, call 248-541-2600 for an appointment.
Attorney Morris has enjoyed a very successful and distinguished career as a trial lawyer providing high quality legal representation in the area of state and federal criminal defense for 20 years. He is known for his trial preparation by fellow attorneys, judges and clients alike. As a trial attorney, he is dedicated to attaining justice in every case, and is prepared to take on complex legal issues with success. Barton and his law firm pride themselves on obtaining results for their clients that other attorneys cannot.
Not only does Barton Morris have extensive experience, he also engages in continuing legal education to provide the highest quality legal services. Barton has received specialized scientific training through the American Chemical Society. He attended the prestigious Trial Lawyers College and serves on its Alumni Association Board of Directors. Barton Morris is also a board member of several distinguished legal associations including the Michigan Association of OWI Attorneys, and the DUI Defense Lawyer’s Association Justice Foundation. He is also an active member of the National Association of Criminal Defense Attorneys and has also graduated from their National Criminal Defense Trial College in Macon, Georgia.
Barton Morris was chosen as a Top Lawyer of Metro Detroit for 2012, 2013, 2014, 2019 and 2020 for DUI/DWI and criminal defense by DBusiness Magazine and Hour Magazine. Barton Morris was also chosen as a Super Lawyer in Criminal Defense for 2014-2020 and Barton Morris is the only Lawyer in Michigan designated by the American Chemical Society as a “Forensic Lawyer-Scientist”