Written by: Christopher Yotz
This is a question I don’t hear much from people. I’m surprised by this. Let’s take a DWI arrest as an example. People will ask if they should blow in the breathalyzer machine or refuse but not think twice about everything they said leading up to that moment. It’s quite possible that by the time you are blowing into a machine the damage may already be done.
If someone is stopped by the police either for a traffic violation or at a checkpoint one of the first questions an officer asks is whether you’ve been drinking. What’s the answer? You could say the same thing almost everyone does, “yes, I’ve had 2 drinks.” I guess people think that the officer will smell the alcohol so I have to admit to it but let’s minimize it by saying only two. This response is a cliché at this point. I’d say maybe 7 or 8 out of ten DWI reports I read lists some form of the this response by the arrested person. Notice I say arrested person. This response does not help you, it only helps the police. You could try and deny drinking but lying to police can be used against you as well. So, the correct answer is no answer. If you aren’t going to slur your words then you could say, “I’m not answering any questions.” I’m not sure this is entirely safe either. The best response may simply be silence. The police may later try and claim that you aren’t responding properly to their questions. However, you don’t have to respond to questions that can be used against you. You have constitutional rights and you should never give them up for free.
In the above example the officer may also ask where you are going or where you came from. Again, answering will only help the police officer. The officer is asking these questions to try and catch you doing something illegal, not to start a new friendship. He or she may be trying to hear whether your speech is slurred and also when you talk you expel breath at a higher rate which makes it easier to smell alcohol on your breath. See how they do this? Tricky isn’t it?
Now, let’s assume you’ve been arrested for DWI. Let’s face it, if you smell like alcohol these days you are quite probably going to be arrested. I’ve seen quite a few videos of people who were arrested for DWI who did quite well on the Standardized Field Sobriety Tests (SFST). I’ve even had a case where the officers are talking to each other on camera saying the soon to be arrested person doesn’t look, act or smell drunk and they then step out of the police car and immediately arrest him. (Oops, I just digressed into story time. Sorry about that).
After you are arrested the police take you to the station or maybe a nice truck or trailer in a parking lot. This is where the breath test machine likely resides. Here they have more questions for you. They may say these questions are just a form they have to fill out. Actually these are questions included in the Alcohol Influence Report they have been working on since they first laid eyes on you. These questions were created in order for you to admit to all the elements of Driving While Intoxicated wrapped up in a nice little package for the police. You don’t have to answer these questions. Almost everyone does. The officer will act like it is just another government form that has to be completed. This is true; he has to complete the form. You don’t have to complete the form or answer these questions and you should not. Again, no answer just like above. I’ll digress into story time again and say that a report I once read listed some very creative responses from the arrestee on this form. While certainly entertaining, it wasn’t the best way to go.
To sum up, you don’t have to (and should not) answer questions that might be used against you even if the question and answer sounds innocent. You have a right to remain silent and you should use it.