Steps to Take Before You Get a DUI
If you get stopped by the police, and you’ve had anything to drink within the last 12 hours, keep these tips in mind. READ THESE TIPS CAREFULLY; whether your DUI case can be defended later may depend on your ability to follow them.
1. Be prepared: Everything that happens in the encounter is being observed by the officer as a possible clue in deciding to arrest you. Say as few words as possible and be conscious of enunciation to defeat any claim of slurred speech. Have your license, registration, and proof of insurance ready to hand over, so the officer cannot claim you fumbled with them. Slurred speech and fumbling for items are two things that officers are trained to look for when they are investigating possible drunk driving.
2. Field Sobriety Tests are OPTIONAL. Their purpose: to document your supposed mental and/or physical impairment for the prosecutor to try to convict you of DUI. DO NOT TAKE THEM. That doesn’t mean to be rude or otherwise uncooperative. Simply tell the officer in a polite and courteous fashion that you understand you are not legally obligated to participate in these exercises, and that you decline to do so.
Your failure to take FST’s may cause the officer to arrest you on the spot. Guess what- if you were being asked to perform FST’s, you were going to get arrested anyway! By refusing to do them, you have taken away much of the evidence that the police and prosecutor were going to use against you, and you’ve gutted the prosecutor’s case. There is more information about FST’s here.
3. Preliminary Alcohol Screening (PAS): There are two types of breath testing devices. Portable PAS devices that are used out in the field, usually in conjunction with Field Sobriety Tests, and the stationary breath testing device that is at the police station. In California, the PAS test is OPTIONAL. In fact, the arresting officer is supposed to tell every suspect that they do not have to take the test at all. Whether you are told that this portable PAS test is optional or not, DO NOT TAKE IT. UNLIKE THE BREATH TESTING MACHINE AT THE STATION, THERE IS NO NEGATIVE CONSEQUENCE TO REFUSING THE PAS TEST IN THE FIELD.
4. Breath Test or Blood Test? The likely consequence for refusing to take the FST’s and the PAS test is that the officer is going to arrest you for DUI. The good news: you’ve gutted the prosecution’s case by not giving them key evidence to be used against you. The overwhelming statistical probability is that if you find yourself being asked to perform FST’s, you are going to be arrested for DUI. This being the case, why not do everything you can to make sure that you walk out with a not guilty?
However, there is another test that you may not want to refuse: the breath or blood test down at the station. Remember, the PAS test is optional, and there is no penalty in refusing to take it. Not so with the stationhouse breath test. Under California’s implied consent law every licensed driver has already consented to a chemical test of their breath or blood when they are arrested for DUI. The DMV penalty for refusing can be stiff: a minimum of one-year. There are also punishment enhancements in criminal court in the case of a refusal too. Therefore, you may want to take the “implied consent” chemical test down at the station.
Which should you take? Both breath testing and blood testing are susceptible to error. The best argument in court is that the suspect was simply not a proper candidate for the type of test that they did. For example, someone who has a lot of dental work should never be asked to take a breath test, since the dental work can trap alcohol in the mouth, and cause falsely high results. If you are a person with a lot of dental work, what test should you request? Breath! That way your lawyer can argue that the results are not reliable, and not reliable equals not guilty.
There are no hard and fast rules about which test should be taken; a good DUI defense lawyer will be skilled at attacking both. However, on balance, jurors are more skeptical of breath testing than blood testing.
5. “Two beers, a few hours ago”: Most folks who have been drinking, when stopped by law enforcement, tell the officer that they had “two beers”. This response is so common, that police officers joke about it: they perceive it as a lie, whether it is true or not. Far better is to say nothing; politely tell the officer that you prefer to remain silent, and not participate in any questioning.
Also, many who find themselves under roadside investigation try to help their cause by explaining that the drinks were consumed hours earlier in the day. The fact is that it is far easier to defend a driver that has “one for the road.” Remember, it is illegal to have .08 or more at the time of driving, not at the time of testing. Since alcohol takes time to metabolize, it is often the most effective defense to argue that while a later breath test may have been above the legal limit, the suspect was below the legal limit hours earlier, at the time of driving.
6. The last tip is what to do after your arrest: hire the best lawyer that you can, one who specializes in DUI defense, one who will appreciate that you followed these tips that have been outlined, and will know what to do from there. The bottom line is that there is little that can be done to talk a police officer out of arresting you once you’ve been pulled over, and he or she thinks you are driving drunk. There is a lot that can be done by a skilled Southern California DUI lawyer afterwards.
|
You have 10 days to have your attorney file an extension to avoid a suspended driver's license. If you haven't filed for an extension, call this number now for free assistance: (818) 346-4646
