Driving While Intoxicated (DWI) – The Basics

On Behalf of | Dec 20, 2020 | DWI, Firm News, Traffic |

With the holidays right around the corner, it’s an important time to discuss drinking and driving. While the increase in holiday parties and social gatherings can be a lot of fun, unfortunately this time of year sees an increase in drinking and driving related arrests.

Remember, the only surefire way to ensure you don’t get arrested for DWI, is to not drink and drive. However, accidents happen and it’s important to be knowledgeable about the basics, just in case you do find yourself getting pulled over.

The Stop

For a police officer to pull you over, they must have a reason. Whether that reason is because you were speeding, you were stopped at a checkpoint, or you’re swerving over the lines on the road, the police must have some reason to stop you. When they do, they’ll ask you for your license and registration, and whether you know why you were pulled over. Understand that you do not have an obligation to admit to anything. In fact, you have the right to remain silent and to simply hand them your documentation. With that in mind, sitting there stone-faced and silent can also lead to them becoming suspicious.

What’s important to know, is that many times the officer will try to get you talking so that they can smell whether you have alcohol on your breath. Almost every time an officer testifies in regards to a DWI, you will hear the phrase “I smelled a strong odor of alcohol emanating from their breath.” This factor, among several others, is what the officer uses to determine whether or not someone is intoxicated.

Signs of Intoxication

Understanding the signs of intoxication is important to know when discussing DWI cases. Some of the common signs that police officers rely upon are the following:

  • Bloodshot and watery eyes:  Often an officer will shine their flashlight into a driver’s eyes and look at them. The reason for this is that they are attempting to determine whether their eyes are bloodshot and watery. While this can be a sign of intoxication, this can also be a sign that an individual is very tired.
  • Unsteady on their feet:  When an officer asks you to step outside of your vehicle, the most important thing that they will be looking for (in a DWI context) is whether or not you get out steadily. They will be paying careful attention to whether you are steady on your feet throughout the entire encounter.
  • Odor of alcohol on their breath: As discussed previously, officers will be trying to engage you in conversation so that they can smell whether there is an odor of alcohol on your breath. The important thing to note here is that they are looking for the odor to be on your breath. Simply smelling like alcohol (i.e. if someone spilled something on your pants) may be insufficient.
  • Slurred speech: This goes without saying, but slurring your words is a tell-tale sign of intoxication. With that being said, there may be other explanations for this, such as medication you may be on.
  • Other Factors: There are a number of other factors that police officers consider in determining intoxication, including soiled clothing, alcohol containers being present, hiccuping, vomiting, incoherent speech, abusive language, among others.

Additional Testing

There are a number of tests that officers will ask you to consent to in order to determine whether you are intoxicated. You do not have to consent to any of them, and you have the right to speak with an attorney before consenting to any of these tests. Because every case is different, determining whether you should consent to taking any of these tests is a complex decision that is best handled with the advice of an experienced attorney. Here are some of the tests:

  • Field Sobriety Test/Coordination Test: Depending when/where you are arrested, the officer may ask you to submit to a coordination test. This may be out on the street where you were arrested, or it may be back in the precinct. Either way, be aware that the test may be videotaped, either on a regular camera, body camera, or dashboard camera. These tests are broken up into several different tests.
    • Walk the line test: Probably the most familiar test to people is the “walk the line” test. This is where the officer asks you to walk along a line on the side of the road (or sometimes in the precinct) and looks to see whether you are able to do so. The officer here is looking at several things; whether you can walk along the line steadily, whether you can follow the instructions that he gives you, and whether or not you are having difficulty completing the task.
    • One-legged stand test: This test is probably less familiar to most people, but essentially what the officer will ask you to do is stand on one leg with your other foot several inches off the ground. Often, they will also ask you to count. The officer here is paying attention to your ability to balance on one leg, your ability to count, and your ability to follow instructions. If you did consent to do this test and you have some sort of injury to your leg that makes it difficult for you to remain on one leg for a length of time, you may want to consider bringing it to the officer’s attention.
    • Hand to nose test:  Here, the officer will instruct you to move your hand and touch your nose. It’s very important to listen to their instructions here, because you need to understand exactly what they’re asking you to do. The officer will most likely switch up which hands he asks you to touch your nose with. Here, he is looking to see whether you can follow the instructions, whether you are listening when he tells you either right or left, and whether you are coordinated in doing this. Officers will often try to trip you up by getting you into a cycle of “right-left-right-left” only to then switch it up to “left-left-right-right-right-left”, etc.
  • Horizontal Gaze Nystagmus Test:  The HGN test will often be referred to by the officer as an eye test. Here, he will tell you to focus on the tip of an object (usually a pen) and will ask you to follow the object from left to right using only your eyes. He will also tell you not to move your head. He’s looking at two things here – the most obvious of which is whether or not you can simply follow the object with just your eyes as instructed. Additionally though, he’ll be looking to see where your eyes begin to exhibit signs of nystagmus. Essentially what nystagmus is, is an involuntary jerking of a person’s eye. There are a few different ways the officer will move the object. What he’s looking for during this test is whether your eyes have what’s called “smooth pursuit”, whether your eyes exhibit nystagmus at the maximum deviation point, when nystagmus is actually exhibited, and whether nystagmus is exhibited vertically.
  • Portable Breath Test: The portable breath test is a breathalyzer machine that officers carry in their vehicles. They use these machines to confirm their suspicion of whether you are intoxicated. With that being said, do not fall victim to the myth that no portable breathalyzers are admissible in court. While not all PBT’s are admissible, there are PBT’s in New York State that are admissible. Be sure to speak with an attorney before consenting to any breath test.
  • Intoxilyzer breath test: If you’ve been arrested for suspicion of DWI, you will likely be brought back to the intoxicated driver’s unit of the police department. Here, you will be asked by the police officer to consent to taking a breath test. I cannot stress this enough; it is imperative that you speak with an experienced attorney before consenting or refusing to take this test. Whether or not you take this test will have serious implications on your potential DWI case and will have serious implications on your driver’s license. In some counties, the District Attorney will not even negotiate with you for a plea deal if you refuse to take this test. In some counties, depending on what you blow on this test the DA may indict your case, even as a misdemeanor, based on the severity of the blow. Furthermore, if you refuse to take the breath test, your license will be suspended regardless of the outcome of your criminal case. With implications such as this, it’s very important you speak to a lawyer before making any decisions.
  • Blood and urine test: Finally, in some circumstances, usually when a person is removed to a hospital because of a motor vehicle accident, police will ask them if they’re willing to submit to a blood and/or urine test. Again, how you answer this question can have serious implications, and you should speak with a lawyer before deciding.


Finally, after the police have arrested you, they will more likely than not read you your Miranda rights and ask you questions. Do yourself a favor and speak with an attorney before answering any questions by police. Even though you may think the questions seem harmless, or that you can fool the officer, know that your answers are most likely being recorded. Furthermore, police are trained to ask specific questions in specific ways to try and get the answer they want. The only true way to ensure your rights are protected are by speaking with your lawyer before answering any questions or consenting to any tests.

With all that being said, remember that the one surefire way to not get into trouble for a DWI related offense is by not drinking and driving. If you do drink, take a cab home.

I hope everyone has a very happy and safe holiday season, and a happy and healthy new year!