If you are ever arrested for drunk driving (also called DUI for "driving under the influence" or DWI for "driving while intoxicated"), your experience will begin with an officer stopping you because of some questionable driving pattern, or possibly because you encountered a DUI "sobriety checkpoint" or you were involved in an accident. The officer will approach your car and ask some questions. You will then be asked to perform "field sobriety tests". He may also ask you to breath into a handheld device, technically called a PBT or "preliminary breath test". You will then be arrested. On the way to the police station, you will be asked to submit to a breath or blood test -- and told that if you don't, your driver's license will be suspended.

What should you do and say during all of this to minimize the risk of a criminal conviction and a license suspension?

1. Politely decline to answer any questions without an attorney present. It is a cardinal rule in legal circles that only incriminating statements are included in police reports and later testified to in court; statements pointing to innocence are invariably ignored, forgotten or misinterpreted. Bluntly put, whatever you say will almost never help you and can only hurt you.

2. Decline to take any so-called field sobriety tests. These are theoretically intended to determine impairment, but in fact are designed for failure. In most cases, the officer has already made the decision to arrest and is simply going through the motions and gathering further evidence to bolster his case (he is the one who decides whether you "pass" or "fail"). In almost all states, you are not required to submit to this "testing". It's unlikely that taking it will change the officer's decision to arrest.

3. Decline to take a "PBT" (preliminary breath test). These handheld units are carried by officers in the field to help decide whether to arrest or not and are notoriously inaccurate. In most states, drivers are not required to submit to these tests (in some they are required if you are under 21). Although most states admit the results of these tests into evidence only to show the presence of alcohol, some permit them to prove the actual blood-alcohol level.

4. Do you choose blood, breath -- or refuse to take any chemical test? This is a case-by-case decision, and involves a number of considerations. First, although blood tests are subject to many possible errors, they are generally more accurate than so-called "breathalyzers"; if you feel your blood-alcohol level is below .08%, then you might want to choose the blood test. Secondly, whether to submit to testing at all requires some knowledge of your state's laws -- specifically, the consequences of refusing. If the increased criminal penalty and license suspension do not outweigh the possible benefit of depriving the prosecution of blood-alcohol evidence, then you may wish to refuse. Bear in mind that the prosecution will charge you with two offenses, DUI and driving with over .08% blood-alcohol; without a blood or breath test, he cannot prove the .08% charge, and there will be no chemical evidence to corroborate the officer's testimony. You should also realize that in many states chemical evidence of a very high blood-alcohol level, say over .15%, can trigger more severe penalties.

5. In almost all states, your driver's license will be immediately suspended if either (1) the chemical tests results are .08% or higher, or (2) you refuse to submit to testing. You have a right to a hearing to contest this administrative suspension, and there are many possible defenses, many of them technical in nature. This hearing is usually separate from the criminal proceedings, and involve different procedures and issues than in court; it is not uncommon to lose the criminal case but win the suspension hearing. However, as most motor vehicle departments do not really want the time and expense of providing these hearings, they tend to provide notice of the right buried in fine print given to arrestees. The critical information is the requirement that an actual demand for the hearing must be made by the arrestee -- usually within ten calendar days. If you do not contact the DMV within ten days, you lose all rights to a hearing -- no matter how good a defense you may have. Tip 5: Get an attorney right away, or make the call yourself -- and make sure you can later prove you made the call within the ten day window!



About The Author

Lawrence Taylor is a former prosecutor, Fulbright professor of law, and author of the standard legal textbook, "Drunk Driving Defense, 5th Edition". He heads an 8-attorney DUI defense firm in Los Angeles. See http://www.losangelesduilaw.com for more information.

Submit your opinion on this article below or submit your own article!

Comments (5) >>

Excellent advice!
written by a guest on October 12, 2006

I'm currently featuring your tips on http://www.drunkdrivinglegalhelp.com/ and have added links to your site on there as well.

Thank you!
written by a guest on December 30, 2006

Thanks and nicely done site - you've done a good job integrating the commerce!

...
written by Anony on January 09, 2007

Unfortunately these legal loopholes allow repeat offenders to continually drive drunk with no regard to anyone. Many drivers are legitemately drunk and thousands of people are killed each year from drunk drivers. Most states have an automatic 1 year suspension of your license for refusal to blow. Unless an attorney can find a technicality, you lose your license. Many people do not learn from this and will drive drunk until they are caught again.

The legal principle of presumption of innocence is not a "loophole"; innocence is not a "technicality"
written by Mark Chicago on March 22, 2007

The desire of the state authorities to take steps to reduce the occurrence of drunk driving in our society is an honorable one, in general. Unfortunately, the draconian penalties being imposed on citizens for "failing" scientifically unsound field sobriety and breathalyzer tests are counterproductive when it comes to obtaining the support of the hundred millions or so of law-abiding citizens who are able to drive their cars quite well even after they have consumed a couple of beers or glasses of wine in their favorite social settings.

The legal principle that all people accused of crimes are "innocent until proven guilty" is not a "legal loophole" but what distinguishes modern legal systems in democracies from totalitarian police states and lynch mob "justice". This fundamental principle of the US legal system protects EVERY citizen - not just the "guilty" - from false accusations and trumped-up criminal charges. To call this a "loophole" is to take up a philosophical position in favor of pre-Enlightenment, medieval legal practices like "trial by fire" and the "Star Chamber"... practices that are in fact being brought back into vogue by the "tough on crime (and 'terrorism')" Bush administration with their secret CIA jails, death squad operations and kangaroo-court "military tribunals".

Politicians intent on winning elections by proving to voters that they are "tough(er) on crime" than their opponents - and the insurance companies who bankroll these politicians' political campaigns - have caused legislation to be passed, like the DUI laws, that have seriously eroded the principle of presumption of innocence of accused persons through mandatory penalties imposed for conduct alleged to have occurred but that has never been proven in a court of law.
Of course, the insurance companies, which stand to profit handsomely from the most severe anti-DUI legislation possible, would like to make it impossible for anyone to drive anywhere at all while under any influence of any amount of alcohol. But this is simultaneously an unattainable and (for most of us) a highly undesirable goal. Until alternative forms of public transportation are made available in every city and town in the US, practically every adult in the country will find themselves compelled to drive under the influence of some amount of alcohol probably more than once in their lifetime. They are not "criminals" - they are not lawless, irresponsible, vicious people intent on killing other citizens with their cars. The vast majority of them would not even be considered to be alcoholics under the present definition of the term. To claim that every driver who has a blood alcohol level of 0.08% is a "problem driver" who is "driving drunk" and should be put in jail no matter what the circumstances is hogwash.
Worse still, the current DUI laws threaten draconian penalties to anyone who dares to attempt to assert their innocence, and they make it very difficult for average citizens to be able to afford to hire the legal help needed to prove their innocence. Every driver in the US (yes, even you, Anony) runs a daily risk of getting swept into this Kafkaesque legal maelstrom so that society can root out the handful of seriously ill chronic alcoholics - who need medical and psychiatric care - not "hard time" - anyway.

Innocence is not a "technicality". Don't be so eager to oppose the "loophole" of the presumption of innocence - you could very easily find your own life or the life of someone you love hanging by that very same thread one of these days. It's a thread that should be more like a very strong anchor chain.

...
written by mike joseph on May 16, 2007

i cannot afford a lawyer, i am unemployed, and find it hard to get around the ankle bracelet for jobs.

Write comment

Name

Title

Comment

Add Comment