 |
 DUI: Do's and Don'ts
by
Attorney Darren T. Kavinoky
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: |
First, the law:
The laws vary from state to state, so
be sure to consult a legal professional in your
jurisdiction if you are arrested. Every state has two ways they can prosecute you. First, if your driving
is impaired to a certain extent due to drinking (the definition of impairment varies from state to state
too, but this is the classic inability to drive like a sober person). Second, if your blood or breath
alcohol level is above the legal limit (.08%, in all
but three states), even if there was nothing at all wrong with your driving. |
|
|
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 there by
using your signal 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
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.
top
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.
top
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. 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. (Unfortunately, if my
client's are telling me the truth, this admonition
doesn't always take place.)
Do not take the roadside breath test. In 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.
|
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. |
|
|
top |
|
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.
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, where I practice, 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.
Drunk driving laws vary from state to state, and cases are handled differently in different areas within a state. That's why it is so important to find an experienced DUI defense lawyer near you. top
|
|
|
 |
