|  | :: WHAT TO DO IF YOU ARE STOPPED FOR DRUNK DRIVING ::
When an attorney represents a person arrested for DUI, the attorney evaluates the case based on what would happen if the case went to trial. Judges and juries are very biased in favor of law enforcement officers. There is a very strong tendency to accept an officer’s testimony as true. A driver’s testimony which conflicts with an officer’s will generally be disregarded or given little weight. So, it is usually best to give a law enforcement officer as little information as possible. These rules apply to adults only. They apply whenever the driver has had two or more drinks. * Always keep your license, registration and insurance handy.
* Do not answer questions or state if you had anything to drink.
* Do not to exit the car unless arrested.
* Do not perform field sobriety tests.
* Do not take the hand-held breath test. (PAS)
* Take a blood test
* Won’t the officer just arrest me because I did not cooperate?
One of the first things the officer will notice, and include in the arrest report, is whether the driver had difficulty in locating and retrieving a driver’s license, registration and insurance. Keep these documents readily available and together in your car. Do not put your driver’s license in a plastic holder in a wallet. Plastic tends to stick to plastic and makes the license hard to remove. It is much better to have the license readily available than to have to explain it was stuck to a plastic container. Such an explanation will be rejected by the judge or jury in favor of the prosecutions argument that the difficulty was caused by intoxication.
A driver has a constitutional right not to answer questions. When asked a question by the officer, your response should be polite, but firm: “On the advise of my attorney I decline to answer any questions.” Should your case go to trial, it is likely the judge will not allow the jury to hear that you invoked your right to remain silent, particularly when you did so on the advise of your attorney. Even if this is allowed, it is much better to explain to a jury you did not answer questions because your attorney told you not to rather than to try to explain why you made statements that may turn out to be incriminating.
Also, the officer may claim your speech was slurred. If you do not talk to the officer this claim cannot be made. Slurred speech can be caused by many non-alcohol related factors such as nervousness. In a trial the prosecutor will argue that slurred speech was caused by alcohol. Your contention that you were nervous will not be given much credibility. It is better not to have to explain slurred speech. You will not have to if you do not answer questions.
If an officer smells an odor of an alcoholic beverage or other indicators of alcohol consumption, or if you disregard rule 1. and tell the officer you have consumed alcoholic beverages, you can expect the officer to direct you to get out of your car to take some field sobriety tests. In most states there is no law that states a driver is required to take field sobriety tests. You should tell the officer that if you are under arrest you will exit the vehicle, but, you do not intend to exit to take field sobriety tests.
When a person exits the vehicle, the officer will often comment in his report that you had an unsteady gait or stumbled or had to lean against the car for support. Even if true, these things can happen for many non-alcohol related causes. However, it is better not to have to explain.
Do not resist arrest. If the officer tells you that you are under arrest voluntarily exit the vehicle and cooperate with the officer.
In most states there is no law that requires a driver to perform field sobriety tests. It is true, that in a trial, the jury may be informed of the fact that you refused to take these tests and may be instructed that this refusal may be considered as motivated by a consciousness of guilt; that is, that you refused because you knew you would not pass because you were intoxicated.
Studies done by the Federal Government have established that only a few field sobriety tests are useful to determine whether a driver’s BAC, Blood Alcohol Concentration, is over the legal limit. If unapproved tests are required by the officer, or the tests as administered by the officer are not done in strict compliance with established guidelines, the tests are unreliable. It is much better to explain to a jury that you refused to take these tests because your attorney explained they are not reliable and because there is no way for you to effectively dispute the officer’s version of your performance than to have to try to convince the jury the officer was not accurate and/or the tests are not reliable.
PRE-ARREST
Many states allow an officer to administer a PAS test but only after the officer has informed the driver that the test is not mandatory and can be refused. Many officer’s falsely claim that if you take and pass the test you will be released. What they do not tell you is that you can, and probably will, be arrested even if the result is less than the legal limit because some people are under the influence at BAC’s under the legal limit and because the test does show you had been drinking. Remember, it is the officer’s duty to arrest even in marginal cases. You are not presumed innocent by an officer in an arrest situation.
All breath testing devices have an inherent margin of error. They are not precise. Accuracy is determined by law enforcement agencies. Breath testing devices can significantly overstate a driver’s true BAC in many situations.
To see a recent study on portable breath testing machines, click here.
All drivers are required to take a chemical test if lawfully arrested. There are significant additional penalties that are imposed for refusal to take a chemical test even if the DUI case is dismissed or reduced in a plea bargain. Also, if you refuse to take a chemical test, you can be charged with the refusal and still have your blood taken by force by the law enforcement officer or officers.
Blood tests are generally considered to be more accurate than a breath test. Of course, this is a two-edged sword. If your BAC is well over the legal limit your chances of winning a trial are not very good. This fact could help you save attorney fees if there are no other defenses. If your BAC is low, then it may be that you have defenses to the charges.
This is a distinct possibility. However, you should keep in mind how much you had to drink. Unless you are very, very sure you will pass the field sobriety tests and your BAC will be less than 0.08, follow these instructions.
Alcohol gives a person a feeling of confidence. That false feeling of confidence in your ability to do field sobriety tests could lead to a wrong decision. Remember, an officer is looking for very small deficits in the performance on the tests. He is looking for admissions of drinking, impairment and poor judgment. Overconfidence could lead to an arrest and a more difficult time in settling your DUI case.
Drivers arrested for DUI often state “I was not drunk!” That is not the issue. The officer’s duty is to arrest if there is evidence of impairment. The truth is that there is no such thing as a fair trial in a DUI case. Judges and juries presume a person is guilty notwithstanding the Constitutional presumption of innocence. The less evidence the prosecution has, the less you have to explain away.
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:: Proof of Financial Responsibility
:: Possible Affirmative Defenses
:: California DUI Penalties
:: California DMV DUI Penalties
:: DMV Hearings
:: Approved DUI Programs (pdf)
:: dui-help.com
:: Nationwide Network of DUI Defense Lawyers
:: California DUI Lawyers Association
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