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« What can happen to my license if I'm arrested for DWI? | Main | Recent Changes in DWI Law »

I just made a mistake, why am I being treated like a criminal?

In a recent article in The Champion Magazine, DWI practitioner Mimi Coffey calls DWI the "Modern Day Witch Hunts" citing bad science and an indifferent or intimidated judiciary (The Champion, November 2004,  Page 51).

Ms. Coffey goes on to effectively describe all the problems with Standardized Field Sobriety Testing which even in a best case scenario is only 80% accurate.  One of the lynch (no pun intended) pins of FST is the Horizontal Gaze Nystagmus test or Eye Test.  She points out that there are over forty different types of nystagmus (involuntary jerking of the eye) that are not distinguished by traditional HGN testing and over thirty different causes of nystagmus OTHER than alcohol or drug intoxication including strep throat and the flu!

She goes on to write, "Another real problem with the horizontal gaze nystagmus test is the timing of its presence and an actual alcohol concentration. The HGN, as administered by the National Highway Transportation Safety Administration’s (NHTSA) protocol for the Standardized Field Sobriety Tests (SFST) has been cited as the only reliable index of blood alcohol when examined for its ability to distinguish BACs under and over .04% within the .00-.08% range. So it is a fallacy to use this test to determine that someone may be over .08 BAC. What is also alarming is the fact that nystagmus can remain for some time once the BAC has reached .000. In a dose/response study of 89 subjects, 62% of the dosed subjects exhibited nystagmus in one or both eyes at BAC levels of .00% when tested immediately after all alcohol was cleared from their blood and 56% of those subjects still exhibited nystagmus one hour later. In the same study, it was determined from 66 healthy, well-rested subjects who did not consume any alcohol and completed 5.5 to 8.0 hours of sleep after being awake for 9 to 14.5 hours (average 11.2) that they had distinct nystagmus in one or both eyes. Afterwards these same subjects were re-examined with an average awake time of 24.5 hours and distinct end position nystagmus was observed in one or both eyes in 55% of the group."

While drunk drivers unquestionably cause many serious injuries and deaths, many people are stopped arrested, prosecuted and convicted of DWI with little or no evidence of impairment, not even causing property damage let alone injury or death.

Unfortunately, excessive media attention and advocacy groups have caused a rush to judgment  in acceptance of such "science" from courts anxious to avoid a "soft on crime" reputation.  Prosecutors find the DWI offender an easy target when it comes to posting impressive filing (the amount of cases filed) numbers as well as conviction numbers as the uninformed and unrepresented accused simply pleads guilty without the benefit of counsel.  DWI conviction numbers are routinely touted in the effort of Police Departments and Prosecutors to appear "tough on crime."  "Kill them all and let God sort them out" seems to be the mantra of modern day DWI enforcement. 

Posted by Will Worsham |

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Help! I got a DWI!

  • 1. Don't Panic.
    People get arrested for DWI all the time. It's not the end of the world. Take a Deep Breath and realize that this is a problem that can be handled. You will get through this.
  • 2. Gather all your paperwork
    You probably received quite a bit of paperwork. Get it all together and keep it that way. Your lawyer will want to review it and some of it contains specific information related to your driving privileges.
  • 3. Act Quickly
    In order to preserve your rights it is important to get a lawyer working on your case immediately. You can begin to lose your opportunity to challenge aspects of your case in as little as 15 days.
  • 4. Hire a lawyer
    By using our online submission form, you can quickly and easily hire Will Worsham and his staff of trained paralegals to begin work on your case. Our site is secure and your personal information is protected.

What to do if stopped for DWI.

  • 1. Be Polite and Respectful
    The officer is just doing his or her job. There is no reason to be rude or disrespectful and it will definitely NOT help your case to be unkind.
  • 2. Do NOT Answer Questions.
    The officer will likely ask you if you have been drinking, where you have been, how much you've had to drink, etc. You have a Constitutional right not to answer these questions - - so don't. Politely tell the officer that you intend to exercise your constitutional rights not to answer questions.
  • 3. Ask if you are free to leave.
    If the officer tells you that you are not free to leave then any further questioning may result in a custodial interrogation invoking additional constitutional protections of your rights. You should politely inquire as to the officer's reason for stopping you and respectfully ask him or her to write you your ticket so that you can be on your way.
  • 4. DO provide your license and proof of insurance
    Always keep these items where you can quickly and easily locate them. Even completely sober people can sometimes fumble and search for proof of insurance that they stowed in their car months ago, but officers and prosecutors often make much of a person's inability to quickly locate these items.
  • 5. DO NOT perform Field Sobriety Tests
    There is no requirement that you perform Field Sobriety Tests. These tests include the Horizontal Gaze Nystagmus Test (eye test), Walk & Turn Test and One Leg Stand Test. Officers also routinely ask suspects to recite the alphabet without singing, count a specific series of numbers, touch fingertips or other tests. Just Say No.
  • 6. DO NOT take the Portable Breath Test (PBT)
    Many officers in Missouri now carry in their patrol cars what is known as a Portable Breath Test or PBT. While the result of this test cannot be used in court to support a conviction for DWI, it can be used to established probable cause to arrest. You are not required to take this test.
  • 7. Expect To Be Arrested
    At this point, although the officer has little if any evidence of intoxication (unless you are slobbering drunk and falling all over yourself in which case you REALLY SHOULDN'T BE DRIVING!) the officer is probably very frustrated that you have excercised your rights and will usually arrest you out of spite. Go along quietly -- he or she has every right to do so.
  • 8. Make An Informed Decision about the BAC Test.
    Once arrested and at the station you will be given the opportunity to submit to the official BAC test pursuant to Missouri's Implied Consent Law. Understand that by refusing to take the test, your license will be revoked for a year. However, taking the test will give the officer crucial evidence in proving a DWI case against you. The choice is yours and it is a difficult one. Without a test of Blood Alcohol Content and absent other evidence of intoxication, it is often difficult for the prosecution to prove their case in court when defended by an experienced DWI Trial attorney.