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THE BEST ADVICE: The only guaranteed way to avoid a DUI charge or conviction is to simply not drink and drive. Even if you plan on just having a few drinks over dinner, just take a cab or Uber home. It takes all the liability off of you, and it makes the roads safer for everyone. Nothing in this guide should be construed as condoning drinking and driving. Ignorance, however, is not a virtue. And if you find yourself being pulled over for suspected DUI, you should know your rights and the best course of action.
Being Pulled Over: First, an officer always needs a reason to pull you over. Whether it is a DUI checkpoint, running through a stop sign, speeding, etc., the officer needs a legally valid reason to stop you. Once you’re pulled over, the officer approaches and, in all likelihood, will ask “Do you know why I stopped you?” What is the best way to deal with this question? Be respectful and polite, but do not guess. If you admit to speeding, running a light, or swerving, you’ve now legitimized the stop. Instead, simply ask why you were stopped.
Answering the Officer’s Questions: The officer will ask for your license and registration. He does this to run your information through dispatch or his computer to see what your record is. Eventually, he will return and ask, “Have you had anything to drink tonight?”
Obviously, the question can be tricky. Say “No” if that’s true. If it’s not, say, “I don’t want to make any statements.” This will be hard to do. Certainly, it is human nature to cooperate and show what a nice person you are. But if you tell the officer you have had anything at all to drink or if you downplay how much you had to drink (for instance, “Oh, I had a beer about 2 hours ago), that will give him the evidence he can use to arrest you. If you refuse to give him that evidence, it may mean you don’t get arrested. If you are arrested anyway, it may mean the charge against you is dismissed because the arrest was unlawful. At the very least, refusing to give the officer details about whether you consumed alcohol will give an attorney down the road more room to work in challenging a potential arrest.
Field Sobriety Tests: If the officer has reason to believe that you’ve been drinking, he’ll often ask to you step out of the vehicle to conduct a few field sobriety tests “just to be sure you’re OK to drive.” Again, this is a situation where you’re being asked to give the officer evidence. You are legally allowed to respond with “I don’t want to take any field sobriety tests.” However, do not refuse a direct order– that can land you a charge for obstruction of justice. However, make it clear you are not doing anything “voluntarily.” The officer isn’t really trying to “be sure you’re OK to drive,” anyway. He’s trying to get more evidence to arrest you. Don’t give it to him.
The Preliminary Breath Test: Often times, the officer will ask you to take a “Preliminary Breath Test” (PBT). The PBT is a hand-held portable breath analyzer. The PBT is conducted right there at the scene. Again, many times and the officer will explain that the PBT is necessary to get an idea of how much alcohol is in your blood, to see if you’re OK to drive home. You will be told that the PBT can’t be used against you in court. This is a half-truth.
Refuse the breath test. It can be used against you in court. It can’t be used the same way the regular breath test at the station is used, but it is routinely used in court to show that the officer had “probable cause” to arrest you. Don’t give it to him. If he arrests you without enough evidence to do so, it doesn’t matter if he gets more evidence later on– the case will be dismissed anyway.
The DUI Arrest: The officer tells you that you are under arrest for DUI, handcuffs you, and puts you in the backseat of his cruiser.
At this point, you have the right to remain silent and you are highly encouraged to exercise that right. Don’t volunteer anything or engage in small talk. Give him your name, address, social security number, date of birth, that type of information, but nothing substantive.
Breath / Blood Test: At the station, the officer will read you a law called “Implied Consent” that says you have to take a breath test at the station. He asks if you will take the test.
Again, this is a complicated situation. The law says you must take the test. If you do take the test, the machine (much larger and far more accurate than the PBT) will produce out a certificate saying what your blood alcohol content is. The number on that certificate and the certificate itself can be used to prove you were over the legal limit of .08. If you blow .15, it triggers a mandatory minimum 5 days in jail, and above a .20 will get you 10 days– more in some circumstances. So– blowing can send you to jail. BUT if you don’t blow, you may be charged with Refusal. A first offense refusal is not a crime – it’s a civil charge. However, it can cost you your license for 12 months with no restricted license. Restricted licenses are routinely issued on low level and first offense DUIs. Because the law of Implied Consent requires you to submit to this breath test, you should.
Facing Your DUI Charge: Consult an attorney immediately. If there is a dash cam available, the attorney will have an opportunity to review it. Your attorney will also speak to the arresting officer. If you followed this guide, you politely refused to answer any questions, you refused the PBT, and you politely refused the field sobriety tests. Your attorney now has the ammunition needed to challenge the probable cause of the arrest.
Have questions concerning a recent DUI arrest. Contact the experienced DUI Attorneys at Ervin Kibria PLLC for a free consultation.
Justin Ervin is a criminal defense and immigration attorney who practices in Northern Virginia.
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