A DUI field guide
First, as a preliminary matter, don’t drink and drive. Just don’t. The cab fare you think you are saving is a fraction of the statutory minimum penalties and court fees that are imposed, even if you plead down to a lesser offense. In my state, even with a plea down to negligent driving or lower, you still have at least $1500 in mandatory fees, and you are in a system that is nearly impossible to escape.
Second, I am not a criminal or DUI attorney and have never had anything resembling a citation for DUI. However, one of my better friends is a DUI attorney and I am one of her greatest sources of referrals (six this year alone). This is not legal advice, just information I have learned from her about what to do if you are pulled over and have had ANYTHING to drink:
- Be polite, but don’t think you can charm your way out of a ticket. Particularly at this time of year, they have already called in your license plate number and you are almost in the system now. Everything you say is subject to being quoted or misquoted.
- On answering the “have you had anything to drink tonight?” It would be inappropriate for me to suggest anyone lie to a police officer, although lying to a police officer is not a crime in most states. That said, the laws generally prohibit “driving under the influence,” not “driving while intoxicated.” In most jurisdictions, this means the state need only prove you were influenced. Having a .08 is, in most jurisdictions, a legal standard for being under the influence, but I know several people who were successfully charged, despite only having a .06 (and even lower). By telling the police officer that (1) you have drank; (2) when you last drank; or (3) how much you drank is just handing the state evidence against you.
- Breathalyzer: you should almost never refuse it, as you will automatically lose your license for at least a year. However, and your jurisdiction may vary, but in most jurisdictions, the “field” breathalyzer (that administered on the side of the road) is inadmissible in court. It is only used to gather “probable cause” to arrest you for drunk driving, and when you are at the police station, you will be asked to take an official one. In my state, you can lawfully refuse the “field” breathalyzer if you tell the officer that you will submit to the official breathalyzer (or blood test) at the police station. If you are on the margins of .08, this will buy you additional time, which is the only thing that brings that number down.
- Field sobriety tests: This is the “touch your nose, say the alphabet, walk the line” test. Again, your jurisdiction may vary, but in most, the field sobriety test is not mandatory - you won’t lose your license for a year or anything. This is because the test is subjective and completely dependent on the officer’s observations (“subject slurred the letter g,” “subject slightly weaved while walking the line”). Unless it is videotaped, you have no way to challenge the officer’s report of how you performed. At least in Washington, it is the strong advice of top DUI attorneys that you NEVER take the field sobriety test, as you are just giving them evidence that can rarely be challenged, and is given a strong presumption of truth because an officer of the law swore to it. Politely decline and again offer to take a breath or blood test at the station.
- Keep your mouth shut: Bears repeating. It rarely, rarely helps you and almost always hurts you. Be polite, be succinct, volunteer nothing.
Again, not advocating drunk or buzzed driving whatsoever. Just passing along information that may prove valuable if you ignore the advice to take a cab and get behind the wheel with ANY alcohol in your system.
Happy New Year!
