It is not illegal to drink and drive. It is illegal to drive if your blood alcohol content is at a concentration of .08 or above. It is illegal to drive under the influence of alcohol or drugs such that you can’t operate your car with the caution and care of a sober person. Unless you have previously been convicted of a DUI offense, however, it is typically not illegal to drive after a couple of drinks. This article is aimed at those drivers—those who drive after having had some alcohol, but are nevertheless afraid that they could erroneously be prosecuted for driving under the influence.
Before You Drive
There are some precautions you can take before you even get into your car. These are a good practice, regardless of whether you think you might be subject to a DUI investigation.
DO MAKE SURE YOUR CAR IS IN GOOD WORKING ORDER. Both the United States and California Constitutions guarantee you the right to be free from unreasonable searches and seizures. What this means is that the police are not allowed to go on “fishing expeditions” or to stop you randomly to see if you’re breaking any law. They must have evidence that you are breaking some law BEFORE stopping or detaining you. In the case of a DUI, they must have some evidence that you’re breaking the law before pulling you over. If you’ve broken the law in any way at all, they are free to pull you over. Do a sweep of your car. Do you have a front license plate? Is your registration tag up-to-date? Are all of your lights and indicators working? Do you have tinted windows? Is there anything obstructing your windshield? Do you have a trailer hitch that obscures your license plate? If your car is in any way out of compliance, an officer can legally pull you over at any time.
DO KEEP YOUR LICENSE, REGISTRATION AND PROOF OF INSURANCE IN AN ACCESSIBLE PLACE. I have seen countless DUI police reports that begin “he fumbled when looking for his car registration…” Few of us can say exactly where our driver’s license, registration and proof of insurance is located without some thought. This is a simple inconvenience in an ordinary traffic stop, but in a DUI investigation it becomes evidence of impairment. The claim is that were it not for the alcohol you consumed, you’d be able to produce such documents quickly and without incident. Know where these are and be able to get them quickly and easily if asked.
If You are Stopped for DUI
If an officer tells you to get out of the car and you believe he wants to conduct a DUI investigation, don’t panic. There are many things you can do to protect your rights and assure the best outcome.
DO REALIZE YOU ARE BEING OBSERVED. If you are being investigated for a DUI, absolutely everything that you do and say becomes evidence that could be used against you. If you’ve been driving a long distance and are slow to get out of the car because you are stiff, that could be misinterpreted as a symptom of intoxication. Stumbling because you’re wearing heels that are too high could similarly be confused with a sign of impairment.
What you say is just as important as what you do. I have seen statements from the absurd to the benign become evidence against unsuspecting defendants. One woman responded “okey dokey smokey” to an officer’s instructions, while another wriggled out of her handcuffs and exclaimed jubilantly “I’m free! I’m free!” While those are obvious faux pas, seemingly innocent remarks such as saying you’re tired or need to go to the restroom will become evidence used to convict you. Don’t talk unless you have to.
DO ASK TO HAVE EVERYTHING RECORDED. In Orange County many patrol cars have “PVS” or patrol video surveillance systems. As a criminal defense attorney, I would ALWAYS rather have a record of something than not. Without a record, we’re left with just an officer’s testimony or recollection of events. That testimony or recollection is often not in your favor. If you’re investigated, ask the officer to record the investigation and take note of his response.
DO BE COOPERATIVE. Among the forms the officer has to fill out if you are stopped for a DUI is a section on attitude. The officer is asked to determine if you are cooperative, belligerent or angry. Anything but cooperative is, you guessed it, evidence of intoxication. Don’t raise your voice. Don’t argue. Tell the officer “I want to cooperate with you as much as I can while protecting my legal rights.”
DON’T ANSWER QUESTIONS. Most Orange County criminal lawyers or Orange County DUI lawyers will tell you that the most important part of a DUI investigation is the question and answer phase. The following questions will often make or break a case: “What have you been drinking?” “How much?” “When did you start drinking?” “When did you stop?” You are under no obligation whatsoever to answer these questions. You have a legal right to remain silent. You should exercise that right. There is no consequence for refusing to answer questions. You should refuse. Tell the officer “I want to cooperate with you. I will take a blood test, but I do not want to answer any questions.”
DON’T DO THOSE “FIELD SOBRIETY TESTS”. At least once a week I have a new client tell me that he “passed” the field sobriety or DUI tests. Convinced that he adequately put heel-to-toe, he thinks the officer is going to let him go. Don’t be fooled. You will not pass those tests. They are not designed to be pass/fail. They are approximately 50 steps to each test and any little thing that you do wrong will be noted and used against you (even if you didn’t know that you were doing it wrong). Don’t take any of those tests. There is no consequence to you for not taking those tests. You have a right to refuse the tests and you should exercise that right.
DON’T LET AN OFFICER SHINE A FLASHLIGHT IN YOUR FACE. Officers will often shine a flashlight into your eyes looking for the presence of something called “nystagmus”. They are taught that the way your eyes respond to direct light can determine if you’re under the influence. Do not allow an officer to perform this test on you. You have a right to refuse this test and you should exercise that right.
DO TAKE A BLOOD TEST. This is important: in California you MUST take a “chemical test”. A chemical test is either a blood test or breath test given at the police station (not to be confused with the hand-held breath test, discussed below.) If you refuse to take a chemical test, the consequences can be severe. Courts will impose 48-hours in jail for a first-time refusal and the DMV will suspend your driving privilege for one year. It is generally better to take a blood test because the lab must keep a sample of your blood for your own expert to analyze. There is no way to independently test a breath sample.
DON’T TAKE AN IN-FIELD OR HANDHELD BREATH TEST, UNLESS YOU ARE TOLD THAT IS A “CHEMICAL TEST”. In Orange County, police officers, sheriffs and the California Highway Patrol all use a device in the field called the Alco-Sensor IV, which is billed as a “preliminary alcohol screening” (or PAS) device. This is not an actual breath test for the purposes of satisfying the legal requirement that you take a “chemical test”. That breath test must be taken at the police station. This is a hand-held machine about the size of a paperback book that the officer asks you to blow into, usually at the end of his investigation. Evidence suggests that the results of this machine are not as reliable as the results of a blood test. Like the breath test, there is no way to independently test its results. As long as you are given the option of another form of test or a chemical test, you can refuse to blow in to the hand-held device. There are some rare circumstances under which the PAS device substitutes for a chemical or breath or blood test. You should tell an officer “I want to cooperate and will take a blood test, but I do not want to take this test”. You have the right to refuse this test as long as you take a blood or breath test down at the police station. There is no consequence for that refusal. If an officer tells you that you must take this test or suffer consequences, then take the test and ask that your objection be noted in the police report.
DON’T CONSENT TO A SEARCH. Unless you are already under arrest you should refuse to allow an officer to search you, your car, your purse or your belongings. If you are under arrest, then you must consent to a search, but if you are not under arrest, you have the right to refuse a search of your belongings, your person and your vehicle. You should exercise that right.
If You are Arrested
If, after taking a blood or breath test at the station, an officer concludes that you are driving under the influence and arrests you, you should act quickly to preserve evidence and mount your defense.
DO WRITE DOWN EVERYTHING AND KEEP YOUR RECEIPTS. As soon as possible, write down everything that happened. Keep a list of witnesses and locations. You may not remember all of this months down the road when the details are critical. Take note of the conditions: Was it dark? Raining? What did you have to eat? Who were you with? If you bought alcohol while you were out, save your receipts. If you were with others, ask that they save their receipts and get you copies.
DO CALL A LAWYER. Many people are arrested for DUIs that should not have been. If you have been arrested for a DUI, you should call a lawyer immediately so that your rights are preserved from the start. If you are in need of an Orange County criminal lawyer or Orange County criminal attorney, call The Law Offices of Staycie R. Sena at (949) 477-8088 now for a free consultation.