By Lawrence Taylor
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.
Source: http://www.isnare.com
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