DUI, DWI, drunk driving: no matter what you call it, if you’ve had a couple of beers at happy hour, and are on your way home when the red lights start flashing in your rear-view, you are eligible for one.
The prosecution in these cases will always refer to four major groupings of evidence to try to convict you:
- Driving pattern;
- Physical appearance;
- Field Sobriety Tests;
- The Chemical Test of blood or breath.
If you’ve had a couple (or a couple too many), and see those red and blue lights, consider these tips:
When you see the lights:
Law enforcement officers are paying careful attention to the manner in which you respond. This is especially true if the thing that caught their attention in the first place was an erratic move, or throwing empty bottles out of the car.
The cops are looking for signs of mental or physical impairment, such as not noticing their lights or siren, having trouble parking, or any other movement that is consistent with impairment.
Best: acknowledge that you know they are thereby using your signal light when you pull over. This shows a lack of mental impairment.
Also: Officers are trained to check your appearance. If your shirt is untucked, your zipper is undone, or your shoes untied, it will show up in the arrest report and it won’t make you look good. Wait till you get home safely to unwind. Park appropriately. If you can help it, don’t hit the curb. That looks bad.
When the officer approaches:
A bunch of breath spray on top of a pitcher of beer won’t fool anyone. Likewise, denial that you’ve had anything to drink when it is obvious that you have, isn’t the best way to go. If you take a breath or blood test later that shows you were lying, that lie can be introduced at a trial as “consciousness of guilt.”
Have your license, registration, and proof of insurance in a location where you can easily retrieve them. Law enforcement is trained to watch carefully to see if you fumble with these documents, as that can be a sign of fine motor skill impairment.
If you’ve had one for the road, be proud of it!
One of the most effective (and honest) defenses in a drunk driving case relates to a rising alcohol level. The gist of it is that alcohol gets absorbed into the body over time; the amount of time will vary greatly, depending on various factors, such as stomach contents. If someone has “one for the road,” and is stopped a short time later, the blood alcohol level will be higher at the time of testing than it was at the time of driving. This is critically important. The crime is driving under the influence, or driving above the legal limit, NOT being above the legal limit by the time you get brought down to the station.
Bottom line: many people try to help themselves by misinforming the officer that they stopped drinking long ago. Bad move. The most helpful answer is that the drinking stopped only moments before the lights went on. My dream case is where a driver chugs all their booze right before getting behind the wheel and is stopped on their way home, which is only a few minutes away.
If (when) the officer invites you out of your car to take Field Sobriety Tests, you may refuse them. They are voluntary. Law enforcement officers will not tell you this, but they are. If you politely decline them, the overwhelming likelihood is that you will be arrested. Guess what? If you are being asked to take Field Sobriety Tests, the overwhelming likelihood is that you were getting arrested anyway, and by declining the tests, you have gutted a major aspect of the Prosecutor’s case.
If you’ve only had a drink or two, probably best not to refuse them; you may get to go home if you perform well. However, if you do perform the roadside agility exercises, be sure to tell the officer about any and all physical problems that you have that may impair your ability to perform to his or her satisfaction. Any old, nagging injury to your ankles, knees, hips, back, etc. should be mentioned. The same is true for any problems with your eyes or ears (inner ear functioning impacts balance). If you are suffering from an ear infection at the time, be sure to tell the officer that.
Roadside Breath Test
There is a pre-arrest field sobriety test that is especially dangerous: the roadside breath test. It is sometimes called the PBT (Preliminary Breath Test), or the PAS (Preliminary Alcohol Screening Test).
Do not confuse this test with the post-arrest test. The officer is supposed to tell you that the pre-arrest test is optional.
Do not take the roadside breath test. Nine times out of ten, the results hurt your case. The technology of the portable roadside test machinery is suspect; there is no mouth alcohol detector to guard against artificially high reading due to belching/burping, or other problems. It’s a bad move.
Where there is a forced blood draw following a refusal, it is possibly the worst of all worlds: the prosecution gets to use the refusal to show consciousness of guilt, and then introduce the blood tests to show you were over the limit.
Blood Test, Breath Test, or Refusal?
I’m asked all the time which test a person should take if they are arrested for DUI, or whether they should refuse the test at all. It’s a complicated question, and there is no universal answer. There are ways to effectively attack both breath and blood tests. Also note: different states use different breath testing machines, some more antiquated than others. If this is a serious concern for you, talk to a lawyer in the jurisdiction where you are doing your drinking. Do this in advance. In most states, you do NOT have the right to consult with a lawyer before deciding which test to take, or whether to refuse.
As for refusing the blood or breath test, you would also be wise to consult a lawyer in advance. In Los Angeles, forced blood draws are rare. That means that if someone refuses the test, it stops there. There is a downside: the DMV will impose a harsher license suspension if there is a refusal. The upside: one more aspect of the Prosecution’s case is gone. How important is your license?
But take note: some places will perform a forced blood draw when a person refuses the test.
If arrested
Get help right away. In every state, when someone is arrested for DUI / DWI, there are really two cases: the court case, and the DMV case. The court is trying to punish you in a variety of ways, and the DMV is trying to take away your driving privileges. (The amount of time varies, depending upon whether it is a first offense, whether it is a refusal, and whether the driver is under 21.)
There are strict time limits within which the DMV must be contacted to avoid automatic license suspension. (In California, it is 10 days.) Contact a lawyer in your area at once to get help to preserve your license.
Also, pay attention to details, such as other people that are with you in jail (possible witnesses), booking officers that note your lack of slurred speech (possible witnesses), or the person you call to bail you out that can testify your speech wasn’t slurred.
This is just the tip of the iceberg. DUI arrests are complicated, and the results can be truly tragic, especially for those wrongly accused.
