Just about anything you say can hurt you during a DWI stop. This is why I normally recommend invoking your right to remain silent, in a polite way, but not talking with the police.
Specifically, how can it hurt you if you talk to the officer? Typically a DWI stop begins with some other reason to pull you over. The officer approaches your window and explains why he pulled you over or asks if you know why he pulled you over. Then maybe a little bit of discussion about that issue, perhaps speeding or a brake light.
Those initial statements can hurt you, because the officer is examining your speech patterns, and he may be able to testify if your speech is slurred. That one little tidbit can be one more piece of evidence to give the officer a reason to arrest you for DWI.
A lot of times the conversation quickly turns into, “Have you been drinking tonight?” Again, a simple conversation where you might admit to, “Yes, officer, I just had a beer or two at dinner.” However, that admission is giving the officer evidence that you have indeed, consumed alcohol at that point. That piece of evidence also goes onto the pile for the officer to establish probable cause to arrest you.
One of the next questions can be one of the most important issues in a DWI case, depending on the facts of the case. The officer will casually ask, “How long has it been since you’ve had a drink?” Many people think they’re helping themselves by saying that it’s been hours and hours since they drank. However, that’s exactly what the Commonwealth needs to prove in a DWI case.
In Virginia, the Commonwealth has to prove your blood alcohol content at the time of the driving. They have to prove you were intoxicated when you drove, and therefore, in some cases it’s really an issue of have you drank anything after driving, between the driving and the stop. If you’re pulled over for speeding, for example, it might not be an issue. However, if there’s an open container in the vehicle and you deny having a drink from it, then the Commonwealth is kind of over a barrel to try to prove that you have not drank from that open container. If you tell the officer you didn’t drink from it and it’s been two hours since your last drink, then they have evidence that you didn’t drink while you were driving, and therefore they can try to prove a DWI.
In an accident case, the question about how long has it been since your last drink can be extremely critical, because if you’re on the side of the road for a good period of time. Then it’s plausible that you might have had a drink if there’s alcohol on the seat or anywhere around. When the officer comes up and asks how long it’s been since your last drink and you proudly tell him it’s been two or three hours, that seals the deal for the Commonwealth on that piece of the case.
As you can see, those three little issues alone can be a big part of a DWI case. Just engaging with the officer about the reasons for the stop, responding when he asks how much have you had to drink, and telling him how long it’s been since your last drink can be a big issue if you’re later arrested for DWI. If you are facing a DWI charge in Virginia, you need to call me right away so we can talk about these issues and others that are going to come up in your case, and what we can do about them.
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