KNOW YOUR RIGHTS IF STOPPED BY THE POLICE! 

Every year, the police grow more vigilant—but in their quest to do the good work of stopping injuries & deaths caused by drunk drivers, they sometimes stop & arrest others who may have been drinking, but were no where near "drunk." (and those who would have made it home safely)

• The legal standard to be convicted is not "drunk," but rather "impaired."  In reality, if you are stopped by the police, & they smell alcohol on you (which they will, even if you had one drink) then you are likely going to jail.  

• You have not been CONVICTED, however, until the case goes through many more steps (see DUI Timeline & Dealing with your DUI, in the DUI section of this website)   There are many things that can prevent you from becoming CONVICTED….

• READ THE FOLLOWING BEFORE GOING OUT-- these couple pointers may help you avoid a DUI conviction:

• Start your trip home by chewing a piece of mint gum – it won't kill the odor of alcohol, but it will diminish it.

FIRST, TO AVOID BEING STOPPED:

Watch your speed--  police are taking radar at night, or can see a car they believe is exceeding the limit, then clock it. USE CRUISE CONTROL, SET IT AT THE SPEED LIMIT!   If you are stopped, an officer will immediately smell alcohol on your breath, as you open your window to give him/her your driver's license.  It's all downhill from there—the officer will ask you to do field sobriety tests, arrest you, (usually regardless of how great you do on the field sobriety tests—especially if there's no video tape being made), then request that you take a breath test, then take you to jail.   (there are legal reasons to attack the basis for the stop in the first place, but speeding is one that is rarely attacked successfully).  More on Field Sobriety Tests and your right to refuse them below.

While driving home, Do NOT TALK ON YOUR CELL PHONE OR ANSWER CALLS!  Don't fiddle with the radio, CDs, or look for lipstick in your purse--  remember, if you have been drinking, your ability to multi-task IS diminished, so whether you know it or not, you WILL be less able to do these things & continue to drive in a straight line.   DON'T RISK IT!  For the sake of a 15 minute ride home, FOCUS--  leave the radio OFF & concentrate on driving perfectly. A single "weave," "swerve," or "wide turn" is all that an officer looking for a reason to stop you needs. The officer will say they "needed to check your well-being."   Right….  (again, there are legal reasons to attack the legality of the stop, but I will not get into this detail here—the stops are deemed legal far more often than found NOT to be legal).   

IF YOU ARE STOPPED: 

• BE POLITE.   Some people "talk themselves into the arrest," just by being a jerk.  This is the one part you, and only YOU, CONTROL.  Also, make sure you are chewing breath freshening gum when you get into your car to drive home.   It will not mask the odor of alcohol completely, but it can help somewhat.

• The officer will usually ask you for driver's license, registration, and proof of insurance.   Have these (registration & insurance card)  in a zip lock bag so you can pull them out readily and confidently. "Fumbling with paperwork" is one of the first indicators that the police use to determine, and later, demonstrate in court, that a person is under the influence.

• IF YOU ARE CONCERNED THAT YOU WILL NOT PERFORM WELL PHYSICALLY, POLITELY REFUSE TO DO ANY TEST, ESPECIALLY THE "EYE TEST." The "eye test" is usually the first test, where the officer casually asks you to follow his pen with your eyes, which seems harmless enough.   If this officer is specially trained, and allowed to testify about this in court, it can be the most harmful of all tests to your case. YOU HAVE THE RIGHT TO REFUSE TO TAKE ALL FIELD SOBRIETY TESTS, AND SHOULD EXERCISE IT IF YOU HAVE DRUNK WAY TOO MUCH & SHOULDN'T BE DRIVING IN THE FIRST PLACE.

• If you feel reasonably sober, (or are!) do all the physical sobriety tests: walking on the line & standing on one foot.   Listen carefully to the instructions and do not start before the officer says "begin."  Relax & do your best. DO NOT PANIC, do not think of all the terrible things that can happen, just focus, relax and try to do these 2 things as "normally" as possible—walk up the "line" (may be a real "line," or may be "imaginary.")   Stand on one foot better by relaxing your standing knee, to give you better balance.  The officer often says "look at your foot!" if you are doing well.   Think of a beautiful, calm place, focus, & stand on one foot, while counting to 30, saying "one, one thousand, two, one thousand, three, one thousand…." & so forth.   Above all, REMAIN CALM.  You will likely be arrested no matter what, so focus on doing it all right, but RELAX.  If the officer has doubts, he/she will ask you to do the "finger count," or touch your nose.   Just listen to instructions, relax & do your best. Again, expect to be arrested. You are doing these tests to show the video, if there is one, that you should not have been arrested, & your lawyer will later make the most of that.

• Do not take the breath test , unless you truly have not had a drink all day Fact is, most people vastly under-estimate what they drink, especially if they are making their own drinks. (and they forget about the 'pre-gaming' they did)   You are already under arrest (you must be for the police to legally request that you take the breath test) you will never be "un-arrested," even if you blow under the limit—you'll just be asked for a urine sample, because the police will conclude that you must be on drugs, if your breath level is under/ within the legal limit, & they've stopped you.

• If you honestly have had ONE DRINK, & have not taken any pill or smoked any cannabis, you can give that sample too, & your attorney will likely be able to resolve the case very favorably.  However, If you took a sleeping pill last night, smoked weed last week, or even took a prescription pain pill that day, for a legitimate reason, it will show up in your urine, which will be used as evidence that you were "more impaired due to the combination with alcohol."   So if any of the above apply, Do NOT give a urine sample either!  Remember, the job of the police is to collect as much evidence as possible.   By knowing this, you can decide whether you want to provide it.  BY REFUSING, YOU SUFFER THE SHORT TERM CONSEQUENCES OF A DRIVER'S LICENSE SUSPENSION, BUT MAY AVOID THE LONG TERM CONSEQUENCE OF A DUI CONVICTION—WHICH IS MUCH WORSE.   (again, there are legal reasons to attack the use of this evidence, but again, the courts do not suppress this evidence frequently.)

• The police will tell you that if you refuse the breath test, your license will be suspended for 1 year, or 18 months if you have previously refused a breath test.   This is true, but you'll get a suspension if you take the breath test & blow over the limit anyway, so again, why provide the evidence they need to lock in the criminal conviction? The administrative suspension is bad—90 days with no hardship license at all if you refuse, vs. 30 days with no hardship if you take the test & (likely) blow over the .08 limit.   Better to take the pain of the loss of license than to hand over proof for a case that may otherwise be borderline.  IT IS VERY IMPORTANT TO AVOID A DUI CONVICTION!   See "What's at Stake," below.

NOTE ON VIDEO TAPING:  Some agencies do, some do not—it's not required. The "trend" seems to be moving away from video taping, since too many people were "getting off" by NOT appearing intoxicated.   Police agencies blame this on budget problems not allowing for in-car cameras.   

WHAT'S AT STAKE? DUI convictions (as well as everything else) stay on your driving record for 75 years.   There is now a National Registry that will track convictions from other states, which used to be "lost" once a person got a license in a different state. DUI is an "enhanced penalty crime," which means the penalties get worse every time a person gets another conviction. On top of all of the court-imposed fines, classes, counseling, and probation, you may also have DMV require the ignition interlock before they will issue you a driver's license, AND you may be dropped by your insurance company (yes, the same one that has been cashing your checks for 30 years, and you've got a great record otherwise)  If they do not drop you, they may raise your rates up to 100% for a conviction.   An arrest alone may cause the rates to rise 40%, but all of that depends on the individual insurance company, and your relationship with it.  And the politics/ company policy of the moment.  Many people don' know, but you may not be able to get life insurance if you have a DUI conviction….

THIS IS WHY IT'S IMPORTANT TO PLAN AHEAD—SET YOURSELF UP FROM THE BEGINNING TO AVOID A CONVICTION

• DON'T DRIVE AFTER DRINKING MORE THAN ONE DRINK!!!!  HAVE A DESIGNATED DRIVER OR TAKE A CAB.  Believe it or not, the $25 cab fee beats the $3500-10,000 attorney's fee. (fees may range depending on the attorney, situation, number of priors, etc.)  

• If you do drive & get stopped, be polite.  REFUSE TESTS POLITELY.  You will likely be arrested, charged, and going to jail, so you should act as if you are on a video-tape that will be shown to the judge.   If you have had more than one drink, DO NOT CREATE EVIDENCE AGAINST YOURSELF BY TAKING A BREATH TEST--  that's not part of being co-operative, it is the right to refuse, which is one of your rights that the police do NOT tell you about.  REFUSE POLITELY, & TELL THEM IT IS ON ADVICE OF COUNSEL, because there are many questions surrounding the accuracy of the breath machines—(there are)

• IF YOU ARE CONCERNED THAT YOU WILL NOT PERFORM WELL PHYSICALLY, POLITELY REFUSE TO DO ANY TEST, ESPECIALLY THE "EYE TEST." This is usually the first test, where the officer asks you to follow his pen with your eyes, and seems harmless enough.   If this officer is specially trained, and allowed to testify about this in court, it can be the most harmful of all tests to your case.   Again, this is just part of knowing your rights, which is a crucial part of preparing to go out this holiday season, or for that matter, at ANY TIME. 

Information is power, and I hope this has helped empower YOU to make good and informed decisions, BEGINNING WITH DESIGNATING A DRIVER WHO WILL NOT DRINK!

MORE IMPORTANT INFORMATION:

DUI Time Line & PENALTIES

Enhanced Penalty Crime