Last night I spent an entertaining evening in the Cary and Raleigh jails trying to get a friend released, so as a libertarian I thought I'd share my impressions.
A colleague of mine arrived at RDU only to find his out of state driver's license was expired and he couldn't rent a car (said colleague lives in a city where he does not drive, and uses his passport for ID). I gave him one of my SUVs, not realising that one of the taillights was out (I only drive it during the day). We had a few drinks at lunch, then agreed to meet after work (he was planning to check into his hotel and take a nap before meeting me to watch the Red Sox game).
He got stopped in Cary at 8:42pm for broken taillight, which is reasonable suspicion (i.e., it would be hard to challenge the stop for lack of probable cause). The police officer allowed him to use his blackberry during the license and registration checks, so he texted me.
By coincidence I was at a Durham bar with two of the three Duke lacrosse lawyers (one of whom I keep on retainer). We gave him the best advice for his situation, collected from the various attorneys, bartenders, Duke law faculty (my wife), and patrons with DUI convictions who were in attendance. Your mileage may vary, of course.
The portable breathalyzer test (PBT) administered on scene is not admissible in court. You may refuse this test without incurring the mandatory one year license suspension. Based on the field sobriety tests and the officer's discretion, however, you may be taken to the police station for an admissible breathalyzer test (this is the one that will get your license suspended if you refuse) or a blood test. Up until this point you are merely being detained, but if they move you from the scene you will be handcuffed and arrested for suspicion of driving while impaired. In my friend's case this was a given, as he had an expired license and an open container of alcohol to boot.
They did not impound my vehicle, though I think this was because (1) it did not belong to the driver; and (2) the stop was in Cary (I was led to believe that in Durham or Raleigh my vehicle would be seized).
At the station you are read your rights of refusal for the "Toxilyzer 5000", and allowed to call an attorney or friend to witness the tests. This was done at 9:42pm and gives the prisoner 30 minutes for the witness to arrive. Perhaps because this was in Cary the police were generous; they gave me an extra few minutes because I was close to the station, but commenced testing at 10:15pm as I was admitted to the detention area to witness my friend's BAC test. The police gave me a hard time, perhaps because (1) I had been drinking earlier in the day; (2) I had to check my firearm; and (3) I was wearing my Duke Law shirt. I asserted my rights and they left me alone; I was allowed to communicate with my friend but not in confidence as I am not an attorney.
My friend blew a .06 two times, and the tension in the room dropped dramatically. At this point the police officer will interview you regarding your use of prescription drugs, marijuana and other controlled substances, your medical history, and your recent eating, sleeping, and drinking habits; you could still be guilty of driving while impaired if your BAC is below .08, though it's obviously harder to prove in court.
Unfortunately he could not simply be released, because according to the Wake County magistrate he had to be "unarrested" at the courthouse. Off we go to downtown Raleigh, despite me being in an open air pickup truck with no top in the pouring rain. It was cold and wet (now I'm super sober!). Happy ending circa 1:30am, and I retrieved my vehicle this morning from a shopping center parking lot.
According to the officer, if my friend had taken and passed the PBT "this all could have been avoided" as he would have had him abandon the vehicle and get a ride home. However, I submit that my friend did the right thing, since his BAC was on the decline and the extra 90 minutes certainly helped. Obviously he did not do the right thing by submitting to the field sobriety tests and having an open container of alcohol, though I was surprised to learn that the fine is only $25 plus court costs for this offense (in larger cities it can be as high as $500, plus it's good cause to take you in for suspicion of DUI).
RECOMMENDATIONS: Upon reflection and consultation with several attorneys, I think there are a few lessons to be learned from this episode.
1) If you have a phone that records audio or video, turn it on as soon as you are being pulled over (make sure you have plenty of storage).
2) If you have a firearm on your person or within easy reach, try to put it on the passenger floorboard, seat, or dashboard. Make sure your license and registration are not near the gun (I keep my documents in the driver's map pocket and NOT the glove box). All of us who are licensed for concealed carry know that the BAC limit is 0.01 when carrying concealed, but a lot is up to the officer's discretion and usually the police will be happy to know that you have received proper training in firearms safety.
Opinions differ on whether the fact that your weapon is not concealed means that you can drive with a BAC between .01 and .08. In the opinion of the Cary police officers it makes no difference; you would be OK with these officers even if your weapon was concealed. I have been unable to find NC judicial precedent on this issue.
3) You might think that the easiest way out of an "open container" violation is to pour your beverage on the floorboard, but most likely the officer will smell the alcohol or detect that the container is cold and/or wet. Remember, in NC the fine is only $25.
4) If you are being detained, don't get out of the vehicle, submit to field sobriety tests, take the PBT, or answer any questions besides what is required under SCOTUS precedent. You can roll down your window a crack to exchange documents, but you should not give the police any opportunity to invade your privacy or search your vehicle. Obviously this is more difficult if you have a firearm, as they may want to "make it safe". Search youtube for videos on how to respond during a traffic stop, or at least watch BUSTED: The Citizen's Guide to Surviving Police Encounters. If you are arrested or forced to exit your vehicle, take only your phone, roll up the windows and lock the doors immediately upon exiting. Refuse any further search.
5) If by chance you have just had four shots of whiskey before getting behind the wheel (and why would you do that?) you may want to take the PBT as your BAC will be increasing. Otherwise, time is on your side. Make sure you have your attorney's contact info in your phone.
6) You might think that being a citizen would give you a right to refuse ALL chemical detection (breathalyzer and blood tests). You would be wrong, as NC is an "implied consent" state. You might also think that if you are a principled libertarian with a documented history of civil rights advocacy, you could explain this to the judge at trial and avoid a DUI conviction; for example, I have been quoted in the press several times about the unconstitutionality of DUI roadblocks. Unfortunately, the crusty old judge will likely think you are trying to pull a fast one, especially if the arresting officer smells alcohol or has other evidence to indicate you were driving while impaired. If you're stone cold sober and you refuse the test, why wouldn't you take it since you're innocent? This is a rhetorical question.
7) A one year suspension of your driving privileges might not be as bad as you think. Besides public transport or simple disobedience, you can get a 49cc scooter which may work fine depending on your driving habits.
8) Don't drive drunk! It's a moral issue regardless of law, just like any other risky behaviour. Know your rights and don't be afraid to assert them.