By Joseph P. St. Louis
When people learn that I have been defending people accused of Driving Under the Influence (DUI) for over 30 years, everyone has one question. Family members, friends, people I meet at cocktail parties, and parents of students from my sons’ school all want to know the same thing: What should I do if I get pulled over after I have had a drink or two? They ask this because we all know that when an officer pulls you over after you have consumed alcohol, there is at least a chance that you will end up being arrested for DUI, and everyone wants to do whatever they can to prevent that from happening.
If you find yourself pulled over on the side of the road after having some beers at a football game or some wine with dinner, it is in your best interest to do everything you can to demonstrate that you are not violating the law – to show that that you are aware, coherent and sober. Of course, when you are being investigated by the police what you don’t do – the actions you need to avoid taking - is just as important as what you do – the actions you need to take. Set out below are my top 10 do’s and don’ts when you are stopped by the police and investigated for DUI.
- 1.) Do Everything You Can to Put the Officer At Ease.
When you see those flashing red and blue lights in your rear-view mirror, you are already being investigated. This is the “vehicle in motion” phase of the investigation. The officer is observing whether you are committing any traffic violations – such as speeding or changing lanes without signaling – and whether you are exhibiting any National Highway Traffic Safety Administration (NHTSA) driving cues that show a possibility or probability of impairment – such as weaving, driving on the lines on the roadway, or making wide turns. Any claimed driving errors or unusual actions will either be recorded on a video, written into a police report, or both.
Once the officer activates his or her emergency lights, the first thing you should to do is to let him or her know that you are responding and pulling over. Put on your turn signal, move slowly to the right, and stop your car off of the roadway. Stopping on a side street or in a parking lot is a lot better than stopping on a busy roadway, just as stopping in a bike lane or in an emergency lane is better than stopping in a lane of traffic. One word of caution: Stopping very quickly, or driving for a long period of time after the officer has turned on his or her overhead lights will be counted against you. (The theory being that you were too impaired by alcohol to recognize that you were being stopped by the police until significant time had passed and/or too impaired to stop the car appropriately). If there is a reason that you needed to delay stopping your car, you should let the officer know why that occurred – that you could not find a safe spot, that you were looking for a well-lit area to stop, or whatever the reason may be.
Once you have stopped the car, try to let the officer know he or she has nothing to fear from you. Roll your window down and turn on the dome light inside your car so that the officer can see you. Keep your hands on the steering wheel. (Some officers will approach you on the passenger side of the car, so watch to see if that occurs). Wait until you speak to the officer to get your driver’s license, registration and proof of insurance. (I used to tell people to have these documents ready by the time the officer reached their car window, but these days it’s better if you are not moving your hands outside the officer’s field of vision when he or she approaches).
- 2.) Don’t Answer Questions That Will Incriminate You.
The officer may ask you if you know why he or she stopped you. This is a trick question – you either admit to committing a traffic violation, or you tell the officer you are unaware that you had committed a traffic violation. Neither answer helps you, of course. While there is always the chance that the officer pulled you over for an equipment violation like a broken taillight, most traffic stops are for suspected traffic violations. Personally, I would answer the question by saying: “I assume you think I did something wrong. Please tell me what you think I did.”
This is the “personal contact” portion of the DUI investigation. The officer will study your eyes to see if they are red, watery or bloodshot. He or she will record (either with a camera or in his or her notes) whether there are issues with your speech – if your answers are mumbled, slurred or confused. The officer will look to see if you fumble with your license, or overlook paperwork you are requested to produce. And, of course, the officer will see if he or see smells an odor of alcohol coming from your person.
In virtually every DUI case, the officer smells alcohol on the driver’s person and asks “Have you been drinking tonight?” If this happens, the officer is not taking a survey. You are under investigation for DUI. Rule number one of any interaction with a police officer is that you must never, ever lie. This does not mean that you have to acknowledge drinking, which will be characterized as an “admission to drinking.” When people ask me, I tell them that I would recommend that they simply tell the officer “I’ve been told to never answer that question by my lawyer” or “I would prefer not to answer any questions, Ma’am (or Sir).” The officer may not be happy with this answer, and you may have to repeat it a few times, but in the end you have a Constitutional right to remain silent, and not answer questions you do not want to answer. At this point in most DUI investigations, the officer will direct you to get out of the car.
By the way – rule number two of interacting with a police officer is don’t argue or lecture him or her on how your Constitutional Rights are being violated by his/her actions. You might win this argument in court, where there is a more level playing field, but you won’t win it on the side of the road, and, since everything negative you say or do is going to be recorded in a police report, you risk making yourself look petty or rude.
- 3.) Don’t Perform Field Sobriety Tests Without Contacting Your Lawyer First.
Should you take field sobriety tests if the officer requests that you do so? Let’s take a minute and discuss what you will be asked to do, and how they are interpreted. If you choose to take field sobriety tests, the most likely thing is that you will be asked to perform three “standardized” tests – an eye test to see if your eyes move smoothly or jerk when following an object from side-to-side across the horizontal plane, and two tests in which you will be asked to memorize and then perform series of steps, while testing your balance. You will be held to the same standards as a 22-year-old Olympic athlete on the balance tests – if you exhibit more than one cue, that is, make more than one mistake, you have failed the test, and the officer is trained that this means that there is a probability that you have a blood alcohol concentration above .08. Many officers will state that displaying more than one cue demonstrates a probability of impairment, but the authors of the studies demonstrating the reliability of these tests were clear that they do not measure driving impairment – they are designed to help an officer determine whether there is a probability that you have a blood alcohol concentration over .08.
Often the officer will ask if he or she can look at your eyes. The officer isn’t simply looking to see if they are red or watery. He or she is administering a field sobriety test called a Horizontal Gaze Nystagmus test where the officer is looking to see if your eyes move smoothly or jerk when following an object (often a pen or pen light) moving side-to-side across a horizontal plane, and when the object is held in different positions for varying lengths of time. As you can imagine, there are issues with giving an eye test on the street – there’s a reason your eye doctor doesn’t ask you to step out into the parking lot before checking your eyes. Nystagmus - jerking in the eyes - can be caused by a number of things, including objects moving through your field of vision (such as cars). In fact, if the officer performs the test too quickly, moving the stimulus faster than your eye can follow, he or she can cause you to fail portions of the test.
The next test usually given is the Walk-and-Turn test. You will be asked to stand with one foot in front of the other, with your arms down at your sides, and remain in that position while the officer gives you a set of instructions you are asked to memorize and perform. If you step out of this position, it is a cue counted against you. If you start before the officer says “go” that is another cue. So if you step out of the start position and take a practice step or two, you have now exhibited two cues, meaning that you have failed the test. After the instructions have been given, you will be asked to take nine steps down a line, touching heel-to-toe, with your arms down at your sides, turn in a particular manner, and take nine steps back in the same manner. Cues counted against you include having a gap of more than half of an inch between any of your steps, stepping off the line at any point, raising your arms more than six inches from your side, or stopping at any point while you are walking. Having any existing issues that affect your balance – problems with your back, legs or ankles, for example – or problems memorizing and repeating instructions – such as Attention Deficit Disorder – obviously make performing this test more difficult. If you can’t hold the starting position and step out of it because you have bad knees, it still is counted as a cue against you.
Finally, you will be asked to take a One-legged Stand test, where you will be asked to stand on one foot, hold the other 6 inches off of the ground, keep your arms down at your sides, and count to thirty, in the form of “one thousand one, one thousand two,” etc. There are four cues that are counted against you - putting your foot down, hopping, swaying and using your arms for balance. Once again, any existing problems with your back, legs or ankles will make performing this test more difficult. If you put your foot down before thirty seconds have passed, it will be counted as a cue against you, even if you put it down because you have a bad back.
So do you have to take the tests? The answer is that no one can force you to perform a physical test, but in most states the prosecution will be able to use the fact that you refused to take the tests against you in court, and argue that you didn’t take them because you knew you were too impaired by alcohol to pass them. The best course of action, when you are asked to perform field sobriety tests is to call a lawyer familiar with your state’s DUI laws, who can tell you what your rights are, and who may be able to advise you as to whether you should take field sobriety tests. So when the officer asks whether he or she can “look at your eyes”, a good answer would be “I want to call my attorney first.” (There are a variety of attorneys throughout the United States who advertise that they handle DUI cases and are available 24 hours a day for consultation, that you can readily find by searching the internet on a smart phone).
If the officer won’t let you call an attorney (which may become a favorable issue for you in court), and you choose to perform the tests, or if you choose to perform them without calling an attorney first, be sure to make the officer aware of any issues that you have that may cause you to make mistakes on the tests – tell him or her that you have bad knees, a bad back, or whatever the issue may be.
- 4.) Don’t Take a Preliminary Breath Test Without Contacting Your Lawyer First.
In many states, once the field sobriety tests are completed, you will be asked to take a “preliminary breath test.” This is a pre-arrest breath test, usually given on a hand-held breath testing device that is not subjected to the same type of monthly checks that the breath testing equipment used to measure breath alcohol for use in court is put through – whether the calibration seems to be holding, whether the machine recognizes and reports errors, etc. In most states, the same rules apply to field sobriety tests that apply to preliminary breath tests – no one can force you to blow into the machine, but in most states the prosecution will be able to use the fact that you refused to blow against you in court, and argue that you didn’t blow because you knew you would be over the legal limit. Once again, the best course of action, is to call a lawyer familiar with your state’s DUI laws, who can tell you what your rights are, before providing a breath test prior to being arrested.
- 5.) Don’t Give Incriminating Answers to Questions after you have been read your Miranda rights.
After the preliminary breath test is completed (or refused) the officer will usually read you your Miranda rights – telling you that you have the right to remain silent, etc. This is not a drill. This only happens once the officer had made a decision to arrest you. You have a Constitutional right to remain silent and not answer questions – and the fact that you exercise that right cannot be used against you in court. The officer has decided to arrest you and is reading you your rights to ask questions, and has told you he or she will use your answers against you in court. There may be someone out there who can give answers that will change the officer’s mind about making an arrest, but I haven’t seen that happen. The vast majority of the time answering the officer’s questions will help the officer make his or her case against you, not help you.
- 6.) Don’t Take a Breath or Blood Test Without Contacting Your Lawyer First.
Once you have been arrested, the officer will ask you to take a blood or breath test. In virtually every state, your driver’s license will be suspended for some period of time if your alcohol concentration is reported to be over .08. So, should you take the test? This question can’t be answered with a simple “yes” or “no,” as the consequences of refusing to take the test vary from state to state.
In most jurisdictions, the state will ask to have your driver’s license suspended for a longer period of time when you refuse to provide a breath sample or a blood sample. Additionally, refusing to provide a breath or blood sample may not end the issue. In many states, the officer will apply for a court order – a search warrant to seize a sample of your blood. Depending on where you live, if you refuse an officer’s request to provide a breath or blood sample, you can end up having your license suspended for a longer period of time than if you had agreed to provide a breath sample and the state can still obtain a sample of your blood to use against you in court – truly the worst of both worlds. This is why you need to talk with an attorney from your state before you make a decision whether to provide a breath or blood sample.
By the way, you may not be able to choose whether you take a breath test or a blood test. In some states the officer gets to choose – if he or she wants to have a blood sample drawn from you for testing, you can’t choose to take a breath test. In those states if you respond to the officer’s request for a blood sample by telling him or her that you will submit to a breath test, but not a blood test because, for example, you are afraid of needles, then you are considered to have refused the officer’s request by have not agreed to give a blood sample, and the state will still seek to impose a longer suspension of your driving privileges.
- 7.) Do Get Your Own Independent Blood Test.
Whether you provide a blood sample, or take a breath test, you should always go to a hospital and have an independent blood sample drawn for your own testing. There are a number of factors that can artificially increase a breath test result – your body temperature, how long you blow into the machine, whether you bring your stomach contents up into your mouth before or while testing, etc. Similarly, errors in how the blood sample is drawn, stored or tested can and do artificially increase a blood test results. The best way to protect yourself against these errors is to have an independent blood sample drawn at a hospital to have independently tested. If the police release you, have whoever drives you home take you to the hospital. If you are being taken to jail, tell the officer that you want to be taken to a hospital first for an independent blood draw. If you ask to be taken to the hospital, and the officer won’t give you the chance to obtain an independent blood sample, that may create a favorable legal issue in your case.
- 8.) Do Make an Appointment to See an Attorney as Soon as Possible.
It is important to get in to see an attorney while the facts of your arrest are still fresh in your mind. In fact, I always ask clients to write down everything they remember about their arrest as soon as they can. At some point you will be able to read the police reports, and typically there are statements in the report that my clients disagree with. The day after your arrest, you will be sure what happened. Months later you may be less sure and more likely to accept the officer’s statement as being true because it is contained in a police report. In addition, if you were stopped or given field sobriety tests in an area with a lot of road construction, it will be important to have your lawyer, or your lawyer’s investigator, photograph or videotape the roadway to demonstrate it’s condition at the time of your arrest. If you have bruising from a blood draw or have been otherwise injured, it is important to photograph and take a video of the injuries – sometimes a video shows the bruising more clearly than a photograph.
- 9.) Do Make Sure the Attorney You Choose is Qualified to Handle Your Case.
Most of us have a doctor that we generally see when we have a medical issue. If we have a medical issue outside our doctor’s scope of expertise, he or she will send us to a specialist. The same is true when you are arrested for a DUI – your attorney must be qualified to handle the case. DUIs are complicated to defend and require specialized knowledge – I wouldn’t handle a medical malpractice case; someone who specializes in bankruptcy shouldn’t handle your DUI. Your lawyer must understand how to challenge legal issues that may range from whether the stop of your car was legally permitted to whether the crime laboratory that tested your blood sample performs blood testing in a manner that produces accurate and reliable test results. Board certifications in criminal law recognized by your state’s Bar Association, or in DUI Defense through the National College of DUI Defense, recognized by the American Bar Association, are good indicators that your attorney is knowledgeable. Lawyers who advertise that they have been recognized as “Top 100” in any organization that has more than 100 lawyers listed, or who advertise that they have received any award from an organization where the “recognition” is dependent on the lawyer paying to receive it, don’t necessarily have the knowledge to handle your case. There are a number of rating systems you can find online by companies that solicit input on the quality of lawyers from judges, other lawyers and clients that will give you good information about whether an attorney has a good reputation for handling DUI cases. If you know an attorney, even one who does not handle DUI cases, a good starting point would be to call and ask for a referral to an attorney who specializes in DUI cases. I refer people to attorneys I know to do a good job for non-criminal cases all the time.
- 10.) Do Voluntarily Participate in Treatment.
If you have bad facts in your case – there was an accident, you had a high BAC reading, you were rude to the arresting officer, or combative, or anything else, really – or even if you don’t have any bad facts, you may have to take steps to help your lawyer get you the best result possible. Clients ask me all the time if going to treatment or AA meetings after an arrest is an admission of guilt. It isn’t, and many times the best thing you can do to help your attorney get you the best result is to build a record of sobriety, demonstrating that whatever happened on the night of your arrest is wildly out of character for you. This is true any time you are arrested for any crime. In felony cases, or in cases involving accidents where there has been a serious injury or death, I will have my clients sign up to give breath samples at random times multiple times a day to show that they are remaining sober (the technology allowing this to happen has improved dramatically in the past few years – you can now get a breath testing unit that you can carry with you in a small leather case that photographs you when you take a breath test, to prove it was really you). I always tell my clients that I never know what will be the deciding factor for a particular prosecutor, but in my experience, people who take steps to document their sobriety are more likely to get a break from a prosecutor than those who don’t.
Conclusion: If you get pulled over for a DUI, there is no surefire way to convince a law enforcement officer not to arrest you. However, following the steps outlined above will greatly improve your chances of getting the best result possible in your case.
Joseph P. St. Louis is the only lawyer in Arizona certified as a specialist in both criminal law (by the Arizona State Bar) and in DUI defense (by the National College for DUI Defense). He is a Regent of the National College for DUI Defense, a national organization with over 1,450 members. He is the past president of Arizona Attorneys for Criminal Justice, and has served as a part-time Justice of the Peace. You can reach him at firstname.lastname@example.org