There are a lot of people out there that think that if they cooperate with an officer who is investigating them for drunk driving, the officer will go easy on them or let them go all together. Unfortunately, this is completely untrue.
When we say “cooperation” we mean doing exactly what the officer wants you to do such as field tests and answering questions. However, that doesn’t mean that when you exercise your rights, you are being uncooperative.
After the traffic stop, if the officer thinks you’ve been drinking, he or she is going to want several things from you. The officer is going to want you to answer his or her questions, they’re going to want to perform field sobriety tests, and they’re going to want you to provide a pre-arrest breath sample.
You can and you should always politely decline to do any of these things. The 5th Amendment in the Constitution gives you the right to not say anything. And, you shouldn’t answer even if you don’t think you’re saying anything incriminating.
Field sobriety tests are notoriously unreliable. In fact, as a DUI lawyer, I’ve never seen a DUI case where the suspect “passed” the field sobriety tests; even when they are completely sober. Officers see what they want to see. In other words, the officer will interpret your performance as a “failure” even though you may have actually performed well.
The law only requires that a person provide a chemical test after a lawful arrest. However, prior to a lawful arrest, any breath test that the officer requests of you is optional. These tests are called Preliminary Screening Alcohol tests (PAS test). Don’t give the officer any more reason to arrest you and politely decline a PAS test.
Unfortunately, the officer isn’t going to let you go if you do what he or she wants. The only thing you’re doing by allowing their requests is giving them more reason to arrest you, which they will.
The officer is not going to go easy on you, even if you cooperate. The simple fact is that it’s not their call. If they arrest you, the case will be sent to the appropriate prosecutor’s office. It’s the authority of the prosecutor, and only the prosecutor, to file charges and decide what sentence to offer as a plea deal.
You can exercise your rights while being cooperative. Just politely decline to answer any questions and decline to perform any field sobriety tests. This is not about hiding your guilt; this is about standing up for your rights.