QUESTIONS & ANSWERS

– YOU ASK WE ANSWER –

AYou are NOT legally required to take any of the various tests that officers seem to demand that you do for them! Cops generally have already decided to arrest you or not before they say that they want you to take a few tests. Now, all you are going to do is make matters worse for yourself by giving them additional evidence that can be used later at trial or against your attempts at gaining a favorable plea bargain.

These tests are very subjective and the officer is very biased. There is no point system used to score these things and there is no check on what the officer observes and eventually writes up in his/her report. Frankly, these tests are a lose-lose situation. One good reason to give the officer for not taking the tests is say, “You’re frightening me officer and I’d rather not take these tests”. Again, don’t think that just because you’re a great athlete or you were once the state balance beam champion that you can pass these tests. They are designed for you to fail. Why not first ask the officer if you are legally required to take the tests and then, a polite, No Thank You should be your immediate response.

If you do decide to test your skills with such tricks as walking a straight line, heel to toe, going up nine steps then making a turn and walking back or standing at attention with head tilted back while trying to estimate the passing of 30 seconds, or standing with one leg slightly raised off the ground without swaying, then practice them now! By the way, law enforcement should ask you if you have any physical problems before asking you to take these tests – the suggestion is that you dig deep and come up with every possible reason that you could fail.

ADo the same thing you did when the officer asked or told or strongly suggested that you take his Field Sobriety Tests! Refuse politely. Here you might want to tell the officer that you heard that these devices are not very accurate and you’d prefer to take a more reliable test. Keep in mind that if you’ve reached this point in the officer’s investigation he/she has likely already made up his/her mind to arrest you or not. You are only going to incriminate yourself further if you are over the legal limit.

ARemember that you are not required to answer potentially incriminating questions. A polite “I would rather speak with an attorney before answering any questions” is a good reply. Another good reply is, “I drink non-alcoholic beverages, but I’d rather not discuss my personal life with you”. Some attorneys suggest that you just say that you had one or two beers since that’s not sufficient to cause intoxication — and it may explain the odor of alcohol on the breath. On the other hand, if you’re BAC is too high after testing, then it is pretty obvious that you were lying when you underestimated your drinking. Find what you’re comfortable with and stick with it.

AOK, it may be too late this time, but in the future you might consider the following:

• Make certain that your vehicle is without mechanical problems. Your headlights and turn signals work. You aren’t discharging excessive emissions. You have legal plates and tags. Your windows aren’t tinted beyond your states legal limit.
• If you’re going to drink, EAT!; If you’re going to drink, Take a cab; If you’re going to drink, keep MINTS handy; If you’re going to drink, Don’t get in a car at a bar at 2 am in the morning and drive home – you will eventually get caught!
• When you get in your car make sure that you have a healthy supply of mints with you. Cops are going to be suspicious if you smell like Peppermint, but they’re going to ask you to exit the car for sure if you smell like alcohol.
• Don’t park your car outside of a bar if you plan to leave near closing time. Police love to lie in wait for the last call crowd to leave. Park somewhere else and take a cab to your car, walk to your car, or at least have a designated drive take you there.
• When you get into your car, take a reality check of yourself. Make believe that you are about to take off in a jet from an aircraft carrier. Make sure all systems are go: headlights on, seat belt on, windows up in cold weather and down or A/C on in warm weather. Check your attire and looks – make sure your shirt is tucked in and hair combed or neat.
• Now that you’re ready to drive here are the primary reasons that police stop drivers for suspicion of driving under the influence! Focus and Avoid these pitfalls.
  • Making a wide turn
  • Straddling the center of lane marker
  • “Appearing to be drunk”
  • Almost striking object or vehicle
  • Weaving
  • Driving on other than designated highway
  • Swerving
  • Speed more than 10 mph below limit
  • Stopping without cause in traffic lane
  • Following too closely
  • Drifting
  • Tires on center or lane marker
  • Braking erratically
  • Driving into opposing or crossing traffic
  • Signaling inconsistent with driving actions
  • Slow response to traffic signals
  • Stopping inappropriately (other than in lane)
  • Turning abruptly or illegally
  • Accelerating or decelerating rapidly
  • No headlights on at night
  Speeding, by the way, is not a symptom of drunk driving. Because it requires quicker judgment and reflexes, it may indicate sobriety to the Cop looking for a DUI/DWI driver. If you’re on a highway, set the cruise control and focus on staying in your lane!
  As you can see, none of these “indicators” would get you a ticket, but they may land you in jail. So, it goes without saying that you should also follow all vehicle code traffic laws. Don’t make rolling stops, don’t run through yellow lights, and don’t do anything to attract the attention of law enforcement.

AThere are several common symptoms of intoxication that law enforcement are looking for when investigating drunk driving. Not much you can do about it after you’re stopped, but awareness of these may lead to better results in the eventual police report given to the district attorney and licensing agency.

• Speech that is slurred or “thick”.
• Eyes that are red or watery; even though many people have bloodshot eyes late at night.
• Breath that exudes the odor of alcohol; even though this is mostly the mix in the drink.
• Walk with an unsteady gate
• Dress that is messy, dirty or sweaty.
• Appearance of an unkempt nature – messed up hair, smudged makeup.
• Attitude that is inappropriate for the moment – arguing, laughing, disrespectful.
• Balance such that you are leaning on the car for support or swaying and unstable.
• Memory so bad that you don’t follow instructions or you seem disoriented.
• Coordination and Dexterity is challenged when looking for your license.

AIn most states you have the option to refuse. But, the consequences of refusing to submit to a blood, breath or urine test varies according to the state and can be very serious. There are typically three scenarios resulting from a refusal.

• The fact of refusal may be introduced into evidence as “consciousness of guilt”. Of course, the defense is free to offer other reasons for the refusal.
• Your driver’s license will be suspended for a period of time, commonly three, six or twelve months. This may be true even if you are found not guilty of the DUI charge; in California, the suspension for a refusal on a first offense is one year.
• In some states, refusal is a separate crime; in others, it adds jail time to the sentence for the DUI offense (in California, 48 hours).

You will need to weight these results against the result of an excessive BAC level.

AThe answer depends on where you live. In California, for example, you don’t have the right to speak with an attorney until after you have taken or refused to take a blood or breath test. But many other states, including Arizona and Kansas, allow you to talk to your lawyer before you take a chemical test. Naturally, you can always ask for an attorney as see what happens.

AIn most states, you have a choice of breath or blood. Only a few states offer urinalysis. If you choose breath, many jurisdictions permit you to have a second test of blood or urine because a breath sample is not reserved after you blow into the machine and therefore cannot be re-analyzed by an independent lab at a later point. In California, only blood or breath is offered, unless neither is available in which case urinalysis is possible; a blood sample can be taken if requested after a breath test is given.

Analysis of a blood sample is potentially the most accurate. Blood samples also provide the greatest opportunity for your attorney to discredit the results. The vile used to hold the blood must have an appropriate amount of chemical in them to preserve the blood and prevent it from coagulating. Also, there needs to be an accurate and consistent amount of blood drawn. Plus, there are procedures that must be followed by the blood draw technician for the test to be reliably analyzed at a later date by the chemical lab.

Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, a blood sample is the wise choice.

Urine is the least accurate and most easily impeached. This is the best option if available and if you believe your blood-alcohol concentration is above the legal limit.

AThe simple answer is that the state has decided that if they can’t convict you on the one then they’ll get you on the other. One is a “per se” law (something that doesn’t require extraneous evidence; kind of like having your parking meter run out – there are no excuses, you just have to pay the fine) that allows them to seize your license if you have a Blood Alcohol level (BAC) above their prescribed limit of either .08% or .10%. Another reason for the existence of the per se statute is that when your breath registered above the legal limit the officer can confiscate you license. Seems unfair right? Well, you are now guilty until proven innocent and you need a good attorney to convince the state or a jury of your peers that there is reasonable doubt of your crime.

The other charge can stand regardless of your BAC level and has to do with you being so influenced by the effects of alcohol or drugs such that you are incapable of properly handling a motor vehicle. This is the reason for the FST’s and the officer’s observations of your behavior, looks, and attitude. In most cases you will be charged with both counts, but you can only be convicted of one, and each carries the same penalty!

ACheck out the tab on Crime and Punishment for a more extensive discussion of the laws and punishment in your state. Briefly summarizing here, this will of course vary by state and county or borough or municipality. And, your previous record can have a major effect on how your are treated. There are fines, license suspensions, rehabilitation classes, probation (either court or formal), vehicle impounds and ignition interlock requirements, and jail or alternative community service such as cleaning the roadway.

AWell, if you’re thinking about representing yourself, it’s just not a very wise decision! See the tab on hiring “The Right Attorney” for a more comprehensive discussion. Simply stated, this is a criminal court and a very serious matter that can affect you and your family for years to come. The laws are complex and the justice system is fraught with perils. Look at it this way, if you get a toothache are you going to start poking around in your mouth looking for a solution or are you going to ask your friend to see what he can do? No! And this is no different. You need a qualified and experienced attorney to get you through this and get you an acquittal.

Take the time to read the tab on “Winning Defense” to see all the ways that a good attorney can cut this charge up in pieces and challenge everything from why the officer stopped you to what was wrong with the equipment or procedure that was used to determine your BAC. And, if you’re looking for a reduction in the charge and penalties, then you need someone to speak for you; someone who has done this hundreds of times before.

ACheck out the tab on “Right Attorney” for a comprehensive discussion of this very important step. And, be sure to check the “Find an Attorney” resource to find an attorney in your area who is imminently qualified to assist you in this mess. Some people suggest asking attorneys you may know for a reference or calling the local bar association referral service or checking with the court clerk or public defender. Generally, non of these are good ideas in and of themselves. What you need is an attorney with a reputation for handling this situation. Someone who devotes himself or herself to DUI/DWI law. Someone who stays abreast of the changing laws and changing personnel at the courthouse. Someone that devotes their free time to attending seminars and continuing education sessions that focus solely on DUI Defense. Someone who belongs to the several organizations that are devoted to creative solutions and practical maneuvers in the courtroom.

AFirst off, hire a great attorney, not just a good one! If you could afford the best, that’s what you’d buy, right? Well, no different here and we’re talking a serious charge. First off, most attorneys will provide you with a free consultation and you should avail yourself of this. But, if the attorney doesn’t take the time to fully understand your individual circumstances, then you are wasting your time and it is a good indication that he or she is just going to treat you like just another steer in the herd.

We suggest that you fill out the extensive interview questionnaire that you’ll find on each of our Legal Defense Network attorney sites. This gives an attorney a head start to understanding what happened to you and what defenses may be invoked on your behalf. And, until the attorney knows the specifics of your case and can determine a strategy that suits you, it is unfair for to try and estimate the cost of representation. Beware of the attorney who just flat out says it will cost X, regardless of what the steps are that will be taken on your behalf. The range of costs will naturally vary by state and locality. The range of cost will vary by how busy the attorney is. And, it will vary by the complexities and seriousness of your case.

As a simple rule:

• Felony charges will be more expensive than a simple misdemeanor;
• First time DUI/DWI’s will be less than a second or third offense on your record;
• Plea Bargain strategies will cost less than a Trial strategies; and
• Expert witnesses or Chemical Lab work will bring about extra costs and time.

We strongly suggest that whatever the negotiated fee or arrangement you reach with your attorney, it should be written into a contract and you should be fully able to understand all that you’ve been advised of regarding your representation!

AAbsolutely, and most of our Legal Defense Network attorneys have terrific winning percentages of outright acquittals, favorable plea bargains, dismissed cases and not guilty jury verdicts. The defenses for these charges are many and even in the most dire of circumstances, there is always the possibility of pulling the white rabbit out of the hat. Police make mistakes, crime labs are not infallible, and juries are impressionable.

ATake a look at our “Driver Resource” section. There are some terrific national and local resources that will help you better understand what you’re now facing and how others deal with it. The information on this site is designed with you in mind – to shed light on an otherwise dismal and dark experience. The authors and editors of this site have left no stone unturned to bring you the most relevant and accurate information. They are themselves experienced DUI/DWI attorneys who handle cases on a daily basis. We recognize the position you’re in and we’re here to make the journey more comfortable for you.

If you have any suggestions or comments that you think would be helpful to others that we have not covered here, please feel free to contact us with your ideas.