What to do if Stopped for a DUI … and After

One of the most common questions we receive and often a discussion among friends is what should I do if I am pulled over by a law enforcement officer for DUI? This question is generally backwards looking and the current case law does not help. It is a interesting question, however, that even attorneys bounce around on occasion. Should a person find themselves in the situation it never hurts to be prepared. Toward this end, this brief outline is meant to provide the “do’s and don’ts” should you find yourself being pulled over and being investigated for DUI. This outline is broken down into sections which are most commonly seen in the final DUI arrest reports of law enforcement. This review is not meant to be legal advice. Instead, this section is a outline and overview of common issues seen in standardized DUI arrest reports.

First and foremost, this outline should not be used to replace the advice of an attorney to address your unique situation. In other words, you should contact a lawyer immediately if you are arrested for DUI. Law Enforcement will give you the opportunity during the DUI processing stage. Exercise this right!

Initial Contact

In most DUI cases individuals are pulled over for a minor traffic infraction, such as speeding or a lane travel violation. In these situations, with a few exceptions, law enforcement officers are limited to asking for your icense and registration and then a brief discussions regarding the stop and identification.

Do not Fumble for a License

Most officers will be watching to see how quickly you can retrieve your license, insurance and registration. They consider it fumbling (ie: drunk) if you cannot retrieve your license and registration quickly. I recommend that you keep a current copy of your insurance and registration in a envelope labeled “license and registration”.

However, if an officer has a reasonable suspicion that you might be driving under the influence he or she may begin a limited investigation into a possible DUI. This usually starts by the officer asking: “have you had anything to drink tonight?” or “where are you coming from?”

Exercise Your Fifth Amendment Right to Remain Silent

While you may be nervous about being arrested you will not talk your way out of a DUI. It is very difficult to remain silent when someone asks you a direct question. However, resist the urge to speak. Do not speak except to provide the officer with identification or licensing information. He is also watching to see if your speech is slurred. The less you speak the better off you are.

The officer may then order you out of the vehicle in an effort to particularize the odor of alcohol to you and to observe how you exit the vehicle. Do not lose your temper, cry or show any other mood swings, as they are looking for these things as evidence of intoxication. Instead, exit the vehicle without saying a word.

Do Not Support Yourself on the Door, Lean on the Car, or Walk in Non-Deliberate Manner

Exit the vehicle and walk directly to where the officer instructs (usually the rear of your vehicle.) The officer is looking for a lack of coordination at this stage.

The officer will ask you if you are willing to do “voluntary” field sobriety tests, to “see if he can allow you to drive / let you go?”

Politely Indicate That You Will not do the Fields Sobriety Tests

Politely inform the officer in a single word “no”. If you have a handicap such as bad knees, ankles, back, etc. Say, “no, I have a really bad back”. The probability is that officer has already made his decision about your intoxication level and will be arresting you. The only thing that is accomplished by doing field sobriety tests is to give the officer more evidence of intoxication.

The officer will then ask you if you are willing to provide a “portable breath sample”. This is called portable breath test (PBT). This is different from the Breath Alcohol Concentration Test (BAC test) that is conducted at the police station. The results of this test cannot be used in a tial for DUI, however, it can be used to support a decision to arrest you.

Politely Indicate That You Will not Provide a PBT Sample

If you submit to this test you may give the officer a reason to arrest you. Further, if your breath sample is over .08, you will have most likely removed a significant challenge to whether the officer should have arrested you.

At this point the officer is faced with a decision of either to arrest you or not. This decision is based solely upon his observations and not any of the tests (such as the PBT) that were conducted. Realistically, you are about to be arrested and taken to the police station. In addition, your car will be impounded. In most cases, the officer will read you your constitutional rights when he is handcuffing you or directly after. Reminder: Do not cry or lose your temper as you will be handing him or her evidence of intoxication.

Exercise your Rights…Request an Attorney and Remain Silent.

Reminder: Do not engage in a conversation as you are being transported to the police station! No matter how nice the officer seems, he or she is mentally recording everything you are saying and doing. These observations and statements will find its way into the officer’s report. For example: apologizing to the officer will be construed later as an admission of guilt and understanding that you were intoxicated.

Processing at the Police Station

The processing stage is usually conducted at the police station. The officer must complete a specific set of steps in order to properly administer the breath alcohol concentration test (BAC). You must be alert at this stage. You should be observing everything the officer is doing. For example, when does the officer check your mouth, does he or she look over the breath machine, etc.

Generally, the first thing an officer does is to check and see if you have anything in your mouth.

Make Sure You Inform the Officer if You Have Something in Your Mouth

If you have anything in your mouth, including gum, piercings, etc., make sure you inform the officer. This is a continuing obligation. If you have something in your mouth, it may affect the breath alcohol concentration test (make it higher!). If you vomit in your mouth during the processing make sure you inform the officer. As embarrassing as it may seem, simply inform the officer “I’m so nervous I accidentally coughed up stuff in my mouth.“

The officer will then again read to you your constitutional rights. He or she will ask you to sign that you understanding these rights. The officer will then ask you to sign the line that indicates you are waiving those rights.

Exercise Your Rights

Simply state “I wish to exercise all my rights”. This includes the right to speak with an attorney and the right to remain silent and not answer any DUI questions. You may sign the line indicating that you understand your rights but do not sign the line indicating that you are waiving those rights.

You will be given an opportunity to speak with an attorney. When you have that conversation the attorney will review your rights with you, consequences of refusing or providing a breath sample, re enforce that you should not answer any DUI questions, among many other things. This point cannot be stressed enough….speak to an attorney The best advice on whether to provide a breath sample can only be made when you provide the specific facts and circumstances of your situation to an attorney.

The officer will then read to you the “Implied Consent Warnings.” These warnings inform you about the consequences to your license depending upon whether you provide a breath sample (above or below .08) or refuse the test. These warnings are lengthy and you must listen very closely.

Express Confusion Clearly

If you do not understand what the officer read to you, and many people do not upon the first reading, you must clearly express your confusion. Inform the officer by stating “I do not understand.” If there is something specific, express your confusion and ask a question. “I do not understand, will I be suspended for 90 days or a year?” The officer has a duty to reread the implied consent warnings or to allow you to review them. Make sure you mentally record what the officer tells you because this information may be the subject of a supression hearing in your case if it is inaccurate.

Do not Sign Unless You Understand

The officer will ask you to sign after he has read the implied consent warnings. If you do not understand the implications of providing or refusing the breath sample…. do not sign that you understand. Instead make a notation on the signature line “I’m confused.”

If you have not already clearly expressed that you wish to remain silent, the officer may begin to ask you questions from the DUI interview section. These questions are designed to limit your defense. For example, one of the questions asks “is there anything wrong with your car.” If you indicate no, then arguably there is no reason for a person to weave within their lane of travel except for intoxication. Another question asks “have you consumed any alcohol after the driving.” If you answer this question “no”, you have removed a defense to the breath sample, which does not permit it to be used at trial if you have consumed alcohol after having driven or been in an accident.

Inform the Officer That You do not Wish to Answer Any Questions

This is your constitutional right… make sure you do not answer any questions related to the investigation of the DUI. You should always provide identification and information not related to the investigation of the DUI, however, don’t answer investigative questions and don’t voluntarily make statements. Exercising your right to remain silient does not cover any statements you make to the officer that are not in response to questions. Hence, blurting out that “this is so stupid of me” or “I only had two drinks” will be used as evidence against you.

The last stage of a DUI process is when the officer asks you whether you wish to provide a breath sample or not. This is not an easy question! Nothing will substitute the advice from an attorney who has all your information and can ask you questions during the processing germane to the decision of whether to provide a sample or not.

As a general rule, especially for first time DUI cases, the recommendation would be to provide a breath sample. Often the greatest consequences to a first time DUI cases involves license suspensions. When you refuse the BAC test, the suspension is greater both administratively (DOL) and through the criminal process. Further, a skilled attorney can often negotiate a reduced charge if the breath sample is below .15 on a first time DUI. Prosecutors are very reluctant, however, to negotiate “refusals” in the same manner. Notwithstanding this general rule, the best and. the only advice, you should listen to whether to provide a breath sample or not, should come from the attorney on the day in question.

Don’t panic, in most jurisdictions you will be booked and released that night to a friend, spouse or taxi. Unless you are a repeat offender or have not been polite you most likely will not spend the night in jail.

Reminder: Even after the completion of the breath test… anything you say or do in front of the officer will be used against you in trial.