This week I am taking a break from the Anatomy of a DUI series I’ve been writing. Instead this week I want to focus on some practical tips to avoid a DUI conviction. The one thing that comes along with the Thanksgiving Holiday season is a lot of social time with friends and family that usually includes some holiday cheer – drinking alcohol. Therefore I want to provide readers with some practical tips to avoid a DUI (driving under the influence) conviction.
As you know, a DUI conviction comes with major consequences. That’s why we fight hard in defending our clients against DUI charges.
Nevertheless, it’s always good to “know what to do,” and “what not to do.” Likewise you should “know what to say” and “what not to say” if you are stopped by a cop and suspected of DUI. Unfortunately, the average person has no idea what to do when stopped by a cop for DUI. So here are some tips to use:
If a cop stops you, he will likely tell you why he stopped you – “you didn’t use your turn signal when you changed lanes” or whatever. He will likely ask for your driver license, insurance documentation, and car registration documents; these documents you must provide, but after that, answering any other questions is completely VOLUNTARY.
If the officer asks you “where are you going?” You don’t have to answer that question. Where you are going is really none of the cop’s business. If the officer asks you where you are coming from, you don’t have to answer that question either, as that is none of the cop’s business as well. If you do elect to answer these question you are doing so VOLUNTARILY.
Suggestions as to what you might say: If the cop asks “where are you going?” - you could answer by saying “I’m going home, or you could say “I’m going up the road.” Or you could say: “Officer, I choose not to answer your questions, just write me the ticket for not using my turn signal” (or whatever the violation was) which is your right to do.
Now if the cop asks you “where are you coming from?” and your response is: “I’m coming from ‘XX’ bar,” - that response would be incriminating as it is implies you were out drinking. You can bet the next question from the cop will be: “So how much have you had to drink?” which will likely also be an incriminating statement.
Suggestions as to what you might say: If the cop asks “where are you coming from?” - you could answer by saying “I’m going home,” or you could say “I’m going up the road.” Get it? “Where are you coming from?” - “Down the road.” “Where are you going?” – “Up the road.” You may be laughing but the point is, it really isn’t any of the cop’s business where you are coming from or where you are going for that matter. The issue is at this point: why did he stop you in the first place.
Now there are some people out there that would say: “well if I don’t cooperate and answer the cop’s questions, he might arrest me.” The answer is this: If you’ve been drinking (and the cop smells the alcohol) the cop is going to arrest you anyway. So why give the cop incriminating statements that will be used against you later in court?
Now after you’ve said that you don’t want to answer the cop’s questions, the cop may tell you that if you step outside the car and take some tests to make sure you are safe to drive (Field Sobriety Tests), the cop will let you go. Don’t fall into this trap!
Field Sobriety Tests are what I call road-side gymnastics that are designed for you to fail. When these test were initially studied in the 1970s for nationwide implementation, the study group were essentially males in their 20s in great physical shape – probably not you.
These sobriety tests consist of checking your eyes for uncontrollable jerking movements (Horizontal Gaze Nystagmus), or walking in a straight line heel-to-toe, or lifting one leg and counting out loud to 30. Many cops like to use other silly tests like touching your nose, etc. The point is, these road-side “Simon Says” tests are designed for you to fail and they are completely VOLUNTARY. Never agree to perform these tests. You don’t have to.
What should you say? If a cop wants you to perform tests to see if you are safe to drive the car, you can say: “I choose not to do any of your tests… because I don’t have to.”
Now there are some people out there that would say: “well if I don’t cooperate and do the tests as requested, the cop might arrest me.” The answer is this: If you’ve been drinking (and the cop smells the alcohol) the cop is going to arrest you anyway. So why give the cop evidence of you failing these tests that he will use against you?.
If a police officer asks you to blow into what is known as a Preliminary Alcohol Screen (PAS of PBT) Test always exercise your right to say NO. You do not have to, UNLESS you are under the age of 21 or you are currently on probation for a previous conviction of DUI – then you most likely must blow into the cop’s breath test machine.
Despite the fact that you choose NOT to answer any questions, and you choose NOT to perform any field sobriety tests, and you choose NOT to blow into a preliminary breath test device, and the cop decides to arrest you anyway, always request a blood test.
The cop should tell you that you have a right to choose a breath test or a blood test, but I always say ‘NEVER blow into any machine - Always choose a blood test.’ The reality is that at this point the officer doesn’t know what your BAC (blood alcohol concentration) is. The only thing that the cop can say at this point is say that you smell like alcohol on your breath.
The truth is that many things can go wrong with the analysis of a blood sample so the blood test results are not necessarily accurate.