1. Do not drink and drive. Rather, call a taxi or have a friend drive you home. 

2. Always drive safely. Most DUI stops are for traffic violations. Be attentive while driving and drive the speed limit. Use your headlights at night and fasten your seatbelts.  Do not text, use a phone, (unless hands free) or anything that will divert your attention from your driving.

3. Do not let the police officer check your eyes and do not agree to take other Field Sobriety Tests. If you are suspected of DUI the police officer will usually first want to check your eyes. He will ask you to hold your head still and follow his pen or finger with your eyes only. This is called the Horizontal Gaze Nystagmus (HGN) test, which is a Field Sobriety Test. Nystagmus, is the involuntary jerking of the eyes. When the officer administers the test correctly and Nystagmus is detected, it can be an indicator that the alcohol is present in the suspected driver’s blood. The problem is that many officers do not administer the test correctly and will often short-cut the test, but yet the officer will write in the arrest report that he/she observed “clues” supporting an arrest for DUI. The HGN test is nothing more than a tool for the officer to use to gather evidence that will be used against you. Since the HGN test is a voluntary test, it is your right to elect not to participate in the test. An honest officer cannot write that you failed a test that you elected not to do. Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any filed sobriety tests.”

In addition to the HGN test, other Field Sobriety Tests often given by police officers are: finger to nose, hand pat, finger count, say the alphabet backwards, count backwards, one leg stand, walk the line and turn, and what ever other crazy test the officer can come up with.

Note that only the Horizontal Gaze Nystagmus test, the One Leg Stand test, and the Walk and Turn test are considered Standardized Field Sobriety Tests and are approved by the National Highway Traffic Safety Administration (NHTSA) and the International Association of Chiefs of Police (IACP) and are part of the DWI Detection Standardized Field Sobriety Testing Program. Any other test is simply not reliable as there are no studies supporting them.

Like the HGN, all Field Sobriety Tests are completely voluntary and you do not have to take them. Always be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any filed sobriety tests.”

Many law enforcement officers will tell you that if you pass the tests you will not be arrested. But if the officer smells alcohol on your breath, it is very likely that you will be arrested. Some officers will tell you that if you refuse to take the Field Sobriety Tests, you will go to jail. Do not allow the officer to intimidate you. If you’ve been drinking, you will likely go to jail anyway.

Some officers will also tell you that if you refuse to take the Field Sobriety Tests, they will tell the court and it will be evidence that you are guilty. Field Sobriety Tests are completely voluntary and it is your right to elect not to take the test.

By agreeing to participate in Field Sobriety Tests, you are helping the officer gather evidence and build a case against you. You are giving the officer the opportunity to write in his report that you “failed” the tests. The tests are subjective and the officer’s idea of “passing” is very different than yours. You are better off not giving the officer “evidence” that he will use against you. Again, be polite, but say to the officer “on the advice of my attorney, I elect not to participate in any filed sobriety tests.”

4. Politely elect not to answer any questions during the DUI investigation, either before or after you are arrested. You must provide the officer with your driver license, registration, and proof of insurance, but other than that remain silent. If the officer asks you if you have been drinking alcohol, simply say “on the advice of my attorney, I choose to exercise my 5th amendment right and remain silent.” It is your 5th Amendment right to remain silent and not say anything that may incriminate you.

The officer will want to ask you questions regarding where you’ve been, what you’ve eaten, how many alcoholic beverages you drank, what were you drinking and when you last slept.  By doing so the officer is gathering information to make a quick determination of your drinking pattern, and with this information, the officer will determine if he/she should test your blood alcohol level as soon as possible or wait a while until you have fully absorbed the alcohol in your stomach. In addition, by answering the officer’s questions you are helping the officer gather evidence – your statements- that will be used against you in court. Again, politely say, “Officer, I choose to exercise my 5th amendment right and remain silent.”

5. If you are age 21 or over, Decline to take the Preliminary Alcohol Screen (PAS) Breath test. After you’ve been stopped, if the officer suspects that you’ve been drinking, he/she may ask you to blow into a Preliminary Alcohol Screen Breath (PAS) device, which is a hand held device used to detect alcohol in your breath. This test is voluntary but most officers won’t tell you that. Many officers will tell you that you must blow into the PAS device. This is incorrect.  If you are 21 years of age or older (If you are under 21 years of age, you must agree to take the PAS test).

Although the implied consent law requires that you submit to a “chemical test” to measure the alcohol concentration in your blood if you are suspected of driving under the influence of alcohol or drugs, the PAS device is not one of the chemical tests. The PAS device is a “preliminary” breath alcohol-screening device designed to determine the presence and amount of alcohol in your body. If you agree to take the PAS test you will have to take a second test after you are arrested (breath or blood). The officer uses the PAS device results to determine if you will be arrested for DUI-Drunk Driving. PAS devices do not always give accurate results. If you agree to blow into the PAS device, you are helping the officer gather more evidence that will be used against you in court.

If you are on probation for a previous DUI conviction, you may have given up your right to decline the PAS device test. Be sure to review your terms of probation if you are on probation for a previous DUI-conviction and consult a DUI attorney.

6. Choose a blood test. If you are arrested, choose a blood test rather than a breath test. If you choose a breath test, the officer will know your breath alcohol concentration immediately. He will then write his arrest report having your breath alcohol concentration in mind. The officer is now more likely to embellish facts in the report to support his arrest. For instance: the driver was weaving in the lane, the driver had slurred speech, the driver stumbled when he walked, the driver fumbled in his wallet to get his driver license, etc. - all because the officer knows your breath alcohol concentration before writing his report.

If you choose a blood test, the arresting officer will not know the results of the blood test for weeks. The arrest report will more than likely have been written prior to the blood test results being available. The arresting officer’s report will likely be more objective and honest because the officer wrote it without knowing the level of your blood alcohol concentration. In addition, if you choose a blood test, an experienced DUI- defense attorney will have the opportunity to have your blood re-tested by an independent laboratory to verify the result as well as check for proper preservative levels, the presence of bacteria, etc. If you choose a breath test, the breath sample is not saved and therefore cannot be retested. Also note that things can go wrong with the blood sample, such as bacteria growth and coagulation. Only take one test a blood test.  Some officers will talk an arrestee into taking a breath and a blood test. That’s like having two smoking guns.

If you have not been drinking alcohol and are being arrested for driving under the influence of drugs, choose a urine test, as it is the least accurate test.

7. Make sure your car is operating properly. Many times persons are stopped by an officer because a taillight is out or the car has some other problem. The officer then smells alcohol when he walks up to the driver’s window and a DUI- investigation follows. After 10 p.m., officers on patrol are looking for reasons to stop drivers to possibly get a DUI arrest.

8. Always be on your best behavior. Some police cars are equipped with video recorders and the stop and arrest are recorded. Some officers carry digital recorders and record conversations. Also many jails have video recorders so you are being recorded while you are being processed. Be polite.

9. Insist on your three completed telephone calls and make a detailed record of all events. Penal Code §851.5 entitles an arrested person 3 completed telephone calls. This is your right and therefore you should insist! Call your cell phone and leave yourself a voice message to record your voice, that way if your speech is not slurred the recording can be used as evidence in your defense.

10. Remember to make a detailed record of all the events that occurred before being stopped, up to and including being released from custody. Do so while it is fresh in your mind.

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