Shoulder Stop, Refusal, and the 20-Minute Decision Clock
At 0147 hours you stop a 2016 Subaru Outback on the right shoulder of I-90 eastbound near mile marker 142. The car had drifted across the fog line twice, slowed to 48 mph in a 65 zone, and braked hard for no visible reason. The shoulder is narrow; the guardrail is about three feet from the passenger side, and traffic is passing at highway speed. The driver, age 34, has bloodshot eyes, slurred speech, and a strong odor of alcohol. He admits to two IPAs at dinner around 2200. Horizontal gaze nystagmus is 6 of 6; walk-and-turn shows three clues; one-leg stand shows two clues. He refuses the preliminary breath test and says he will blow at the station but not on the shoulder. The passenger is the registered owner, is sober, but has a suspended license. Department policy requires removal of a vehicle when the driver is arrested and no sober licensed operator is available.
1. What is the lawful basis to arrest, and should the standardized field sobriety tests have been conducted on the shoulder? Explain the safety and evidentiary tradeoffs.
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The arrest basis is probable cause, not a breath result. The driving pattern, personal indicators, admissions, and divided-attention test clues together support probable cause that the driver operated while intoxicated. The refusal of the preliminary test does not defeat probable cause; it is a factor to document, not a substitute for it.
On the shoulder question, the best practice is to move the testing to a safer location when it can be done without creating delay or losing evidence. A narrow shoulder next to 65 mph traffic creates a serious risk both to the driver and to you. If a safe pull-off, parking lot, or covered location is minutes away, conduct the tests there and document why. If no safe location exists, conduct only what is necessary and keep the driver on the non-traffic side, with emergency lights on and a lookout for approaching vehicles. The key is to explain the choice in the report: safety drove the location, and the tests were still administered under substantially the same conditions. Do not let a later claim that the shoulder was unsafe become an unaddressed issue.
2. After arrest, the driver refuses all chemical tests at the station. The passenger is sober but has a suspended license. What do you do with the driver, the vehicle, and the refusal documentation?
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Arrest and process the driver for driving while intoxicated. At the station, read the chemical-test warning clearly and record the refusal. A refusal triggers DMV refusal-hearing consequences separate from the criminal case, so document the exact warning given, the time, the driver's words, and any request to speak with a lawyer. Do not characterize a request for counsel as a refusal unless it is one after the warning is given.
For the vehicle, the passenger cannot lawfully drive because the license is suspended. Do not release the car to that passenger merely because the passenger is sober. Follow the tow-and-inventory policy, or use a licensed, sober alternative if one arrives within a reasonable time and policy allows. Inventory the vehicle according to policy, not as a pretext to search for evidence. Photograph the vehicle's position and condition before tow. In the report, separate three issues: probable cause for the stop, probable cause for the arrest, and the vehicle disposition. Each should stand on its own facts so a later reader does not have to infer why the car was towed.