What If You Have Passengers In Your Car?

Interviewer: What happens if you have passengers in your car? Are they allowed to be field sobriety tested? What would happen to them normally?

Shannon: In order to have a field sobriety test requested of you, the officer has to either obtain your consent, or they have to have probable cause that you’re under the influence of intoxicants. Then they’re just looking for further evidence to corroborate what they already believe.

The Police Cannot Ask Passengers to Perform Field Sobriety Tests to Determine Intoxication

It has to be one of the two ways. They can’t just go around to everybody and say, “Get out. Take a field sobriety test.” They are must have probable cause for each person that a crime’s been committed, or you consent to it.

A passenger, what kind of crime they’ve committed if they’re in the passenger’s seat and they’re under the influence? There is no law against that. As a passenger, you’re not going to be asked to take a field sobriety test.

Interviewer: Will they separate the passengers and ask them to corroborate? Will they say, “Has your friend been drinking? Has the driver been drinking?” Will they do that?

If a Driver Is Charged with DUII, an Additional Charge of Reckless Endangerment Can Be Added if There Were Passengers in the Car

Shannon: Of course they will. They’re going to get the passenger’s information because if this driving endangered the person in the passenger’s seat, and they are going to charge the driver with reckless endangering.

That person is now considered a victim. If the person has also been drinking, then it will be difficult for the prosecutor to show that there’s actual reckless endangering of another person when that person was just as under the influence as this person. Who is the better choice of drivers in that situation? It is hard to prove.

As far as the passenger goes, they can ask the passenger questions and try to get additional information to prosecute the driver, but they’re not really going to arrest the passenger. They are usually going to say, if the passenger hasn’t been drinking, “Can you drive this vehicle for your friend, or your family member?” Or they’re going to say, “You need to take a cab or you need to walk home.”

As a passenger, you have your own rights that come into play as a passenger because you’re also stopped and, depending on whether or not you’re told you can leave the scene, you have your own constitutional rights that come into play in that situation.

As a Passenger, You Cannot Obstruct the Police Questioning But You Are Not Required to Answer Incriminating Questions

Interviewer: If they ask you information about the driver, are you allowed to say, “I don’t want to give any information,” or no?

Shannon: If it’s going to incriminate you, of course you don’t have to give any information. If they’re asking you how you should respond, it’s up to you. You can’t obstruct an officer from their investigation, you can’t prevent them from getting information, but they can’t force you, unless you’re under subpoena of the court, to answer any questions.

Interviewer: Could they say to you, “How much has your buddy had to drink here? Tell me.”

Shannon: Yes. I’ve had people that say, “He had about eight drinks.” I’ve had other people say, “I knew how much he had to drink, but I don’t want to answer that. I don’t want to throw my buddy under the bus, so I just choose not to answer that.”

Sometimes you get really good people that are really good witnesses, and they’ll say, “I was with so and so the whole night. I know for a fact she hasn’t had more than two beers over the course of three hours. We had quite a bit to eat.” There could also be good witnesses too.

Shannon I. Wilson, Esq.

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