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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