Tiger's big mistake: Cooperating

Story highlights

  • Danny Cevallos: Tiger Woods should not have talked or complied with police tests
  • Cevallos: He then would have been able to control narrative and preserve his brand

Danny Cevallos (@CevallosLaw) is a CNN legal analyst and an attorney practicing in the areas of personal injury, wrongful conviction and criminal defense in New York, Pennsylvania and the US Virgin Islands. The opinions expressed in this commentary are his.

(CNN)Early Monday, police in Jupiter, Florida, discovered Tiger Woods in his 2015 Mercedes-Benz on the side of the road, its brake lights illuminated and right turn signal flashing. He was by himself and wearing his seat belt, but the vehicle showed signs of "fresh damage" on the driver's side of the vehicle.

Woods was found asleep at the wheel and was arrested on suspicion of driving under the influence. Several field sobriety tests and breath and urine testing followed. He also reportedly admitted to prescriptions for Vicodin and other medication.
Danny Cevallos
But Woods made a mistake in his admission. He would have been better off if he had refused all testing and requests for information by law enforcement.
    In other words, Woods' case was made against him not when police found him snoozing in his car, but after he started talking and consenting to tests.
    The police probably had grounds to stop the car. The report indicates the vehicle was stopped partially in the bike lane and in the road. And even if he had been pulled over in the shoulder and parked, police officers may conduct welfare checks of parked cars. These are considered consensual and therefore constitutional encounters.
    Once they lawfully approached Woods, they could start making observations of his condition. While there's some wiggle room when police observe "extremely slow and slurred speech," if someone is slumped over in the car, they are going to suspect a DUI. Still, though, the police did not detect the odor of alcohol on Woods. This could possibly still be an exhausted driver stopped in the middle of the road -- guilty of traffic offenses, but not a DUI ... yet.
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    In Florida, you're not required to perform a field sobriety test. If you show any signs of impairment at all, like bloodshot, watery eyes or slurred speech, you're probably going to be arrested anyway, whether or not you refuse the field sobriety tests. The view of some in the defense bar is: If you're going to be arrested either way, why perform field sobriety tests and provide additional evidence that will be used against you?
    The proliferation of the dashcam has removed a lot of ambiguity about field sobriety tests. Defense attorneys still challenge them as improperly administered by police, who are biased nonscientists -- it's just a lot harder when there's video of the client swaying, stumbling and even dancing his way through the "walk and turn."
    In Woods' case, dashcam video shows him staggering and aimlessly wandering away from the officers during what appears to be the walk-and-turn test, which would not be considered a pass.
    But in addition to field tests, Woods was asked to do a lot of scientific testing. He agreed to everything, it seems.
    Police asked him to take a Breathalyzer. He agreed. He blew a .000. Twice. He was not legally drunk on alcohol.
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    Then they asked him to take a urine test. He agreed. Breath tests are different from urine tests. Breath tests only detect alcohol, whereas urine tests detect controlled substances.
    Unless an officer has "reasonable cause" to believe a person is under the influence of a chemical substance or controlled substance, a request for a urine test is unlawful. In Woods' case, he told police he was on an opioid pain medication, Vicodin. That's reasonable cause right there. We don't know the results of his urine test yet.
    What if Woods had refused all testing and refused to say a word to the arresting officers? He would have been charged with a "refusal." It's an automatic suspension of his license for a year. Plus, at his subsequent criminal DUI trial, that refusal might be evidence of Woods' consciousness of guilt.
    On the other hand, consider if he had refused to speak or submit to testing. There would be no scientific evidence about the specific drugs he was on. And there would be no admissions about the specific drugs he was on.
    Is it really possible that Woods could have refused all testing? Doesn't Florida allow forced, strap-you-down-to-the-gurney blood testing? It does, but not in this case. Blood cannot be drawn by force for a misdemeanor DUI in Florida, only in felony cases involving death or serious bodily injury.
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    But let's face it: Woods doesn't care about the criminal record. He doesn't care about a license suspension. What he really cares about is his brand.
    If he had no drug test results, his publicity team could write the narrative about what happened and what he was on. "I regret my use of Benadryl and Mountain Dew had this effect on me, but I am donating a truckload of money to someplace, and seeking counseling, and I'm putting all this behind me."
    Instead, we're awaiting the results of a urine test he could have refused. And that won't likely be .000. It's hard enough to challenge scientific evidence in court -- but it's a lot harder to challenge it in the public eye and defend an almost billion-dollar image.