What to do if arrested for Driving while Intoxicated.
If you drive after having an alcoholic beverage, sooner or later you will be stopped and probably arrested for Driving While Intoxicated (DWI). The pressures for police officers to win has reached new levels with the use of the Trick or Loaded Question.
After the officer gains your compliance, usually after you finish performing the requested balancing tests and the eyeball test, many officers will continue to take advantage of your natural desire to be polite and cooperative and ask you, without reading you your Miranda rights, something close to the following question:
“On a scale of 0 to 10, what do you think your intoxication level is right now, 0 being totally sober and 10 being pretty darn drunk, where would you say you are right now?” (actual words used)
The question is loaded because any answer you give above a (0) will be considered intoxicated for purposes of DWI. The trap is sprung and the accused is totally unaware until he either talks to a lawyer or looks up the definitions of the words used. The officer is aware that most people want to be respectful and comply with them. He knows that most lay people don’t know the legal definition of the word, “Intoxication” and he doesn’t define or explain it. Additionally, the words, “totally sober” and “Intoxication Level” are also left for your interpretation. The use of the phrase “Intoxication Level” is ambiguous and unfair. Many may assume that the officer is asking in terms of a numerical level. (i.e. .08 or more alcohol concentration)
The legal definition of “Intoxication” is not having the normal use of mental or physical faculties due to the introduction of alcohol…” along with the .08 or more alcohol concentration. The definition of the word, “sober”, includes “not affected by alcohol.” Accordingly, “totally sober” could mean having no alcohol at all. When we drink alcohol, we usually feel some effect or sensation and the law allows it as long as we still have the normal use of our mental and physical faculties. The question above does not allow the accused a way to tell the officer, “I’ve had some alcohol, but I’m not intoxicated”. This question is fundamentally unfair and everyone involved in the justice system knows it.
If I were a police officer, I would not be able to ask that type of question because it would eat me up inside knowing that I used my position of power and influence to take advantage of someone in my attempt to get a conviction. I think I owe that part of me to my parents or my God given conscience. I do believe we still have police officers that understand fairness, but we need more.
Thanks to David Guinn and Charlie Pelowski for their input.