A cop asks if you’ve been drinking...

Hey there

Another Tuesday, another legal crash course from your favorite internet lawyer. 

Today, we’re diving into what you should and shouldn’t do if a cop pulls you over and asks, “have you been drinking?”

But first, let’s be clear: you should never drink and drive. It’s dangerous, illegal, and not worth the risk... to you or anyone else on the road. Even if you’ve had just one, play it safe and call an Uber or a friend.

Now, let’s get into it:

“Have you been drinking?”

Ah, Dry January. You’re crushing it... sparkling water in one hand, virtue in the other. Tonight, it’s just you, your car, and an exquisitely selected playlist. 

Life’s good. Then BAM! Flashing red and blue lights in your rearview mirror.

You pull over, roll down the window, and the officer hits you with, “Have you been drinking?”

But here’s the twist: just because you’re squeaky clean doesn’t mean this can’t get messy. Time to know your rights before this turns into a courtroom drama.

Reasonable Suspicion Vs Probable Cause

When can the police legally stop you, test you, or arrest you? It all comes down to two legal thresholds: reasonable suspicion and probable cause.

• Reasonable suspicion: This is a low standard... a hunch backed by some facts. For example, swerving between lanes or running a red light might give an officer reasonable suspicion of drunk driving to pull you over and perform a chemical test (like a breathalyzer).

• Probable cause: This is a higher standard. It requires enough evidence to believe a crime has been, is being, or will be committed. Probable cause is what officers need to arrest you, search your car, or take other more invasive actions.

Keep this difference in mind - it’s the foundation for everything else you need to know in this situation.

Field sobriety tests are optional

The officer might start by asking you to perform field sobriety tests: walking a straight line, balancing on one leg, or following a pen with your eyes. 

Here’s the key: These tests are completely voluntary.

Why you should think twice about agreeing...

• Field sobriety tests are subjective, meaning the officer decides if you “pass” or “fail.” They’re not very reliable either. Studies show they only correctly identify impairment about 66–75% of the time. 

• If you’re tired, nervous, or have balance issues, you could fail - even if you’re sober.

• The general consensus for defense lawyers is to not do a field sobriety test when requested. 

What happens if you decline? 

• You can politely refuse without facing legal consequences. But keep in mind, refusal won’t necessarily end the stop. 

• If the officer has reasonable suspicion for other reasons - like reckless driving or the smell of alcohol - they might move straight to requesting a chemical test.

When the cop asks you to do a breathalyzer...

Chemical tests (breath or blood tests) are treated differently under the law.

Thanks to implied consent laws, when you got your driver’s license, you agreed to take these tests if an officer has reasonable suspicion that you’re under the influence.

When can they request a chemical test?

• In most cases, officers need reasonable suspicion to ask for a test. 

• Signs like the smell of alcohol, an open container, or erratic driving could be enough. 

Can you refuse?

Yes, but refusing comes with serious consequences:

• License suspension: Refusing a chemical test can lead to an automatic suspension, often longer than the penalty for failing the test.

• Evidence in court: Refusal can be used against you during trial to suggest guilt.

• Criminal charges: In some states, refusal is its own offense, with fines or even jail time similar to a DUI conviction.

If you’re not sure they really have a legitimate reason to make you do a test, refusing is still probably not the best move.

Remember: Never drink and drive. Even one drink can impair your judgment and put lives at risk. If you’ve been drinking, always choose a safe option like calling an Uber, a taxi, or a friend. No legal tip can protect you from the serious consequences of a bad decision behind the wheel.

The bottom line

Dry January or not, getting pulled over can be nerve-wracking. 

But when you know your rights, you’ve got the upper hand. Just remember: reasonable suspicion for tests, field sobriety tests are a no-go, and refusing chemical tests have serious consequences. 

The smartest move is not to put yourself in this situation to begin with. If you’ve had anything to drink, just stay home or call an Uber - it’s always the better choice.

How to feel prepared for life’s tricky situations

In the heat of the moment, it’s easy to forget your rights... If you want to feel fully prepared for any tricky situations life throws at you, I’m putting together some easy-to-follow guides on all the basics to keep you one step ahead at all times. To learn more, hop on the waitlist here.

That’s it for today. Until next Tuesday, this case is closed.

See you then!

Mike