What to Do when you see the lights in the rear view mirror?
When the police first activate their "emergency equipment" ie., the lights on their car, it is incumbent upon you, the driver, to pull your car over to the side of the street as quickly and safely as possible while still following the rules of the road. You see, the officer begins to formulate his "reasonable suspicion" of you at this early point in the process. That means, one needs to utilize the blinker in order to change lanes, no swerving between lanes or diving across several lanes of traffic in order to park on the shoulder. Instead, one must carefully place their blinker on and switch lanes only when safe to do so and only park where safe and legal to do so or the police will document poor parking against you. Another very important point about parking is that to the extent possible, it should be done in a proper parking space as opposed to the side of the road because after the arrest, they will want to tow your car away, costing you more unnecessary expense.
What are the police looking for?
The most obvious thing they are looking for is the odor of alcoholic beverage either on your person as the driver or within the passenger cabin of the car. When the police smell alcohol, their arrest decision is 80% made that somebody is going to jail. The reason for that is that the driver was doing something illegal which caught his attention, ie. speeding, crossing lines, following too closely etc. The illegal driving behavior coupled with the odor of alcohol sets the arrest wheels in motion. The police will then look for additional personal observations such as red glassy eyes, slurred or slow speech, disheveled clothing appearance and the like. When the arresting officer notes these attributes in his report, along with the odor of alcohol, the driver IS going to be arrested. But before the officer effectuates the arrest, he wants to glean more evidence to convict you in court; how does he do that? Easy, FSTs or field sobriety tests. Whats an FST? Read on...
What are the police looking for in a DUI traffic stop?
According to the NHTSA manual (the DUI bible for police procedure) they are supposed to begin making observations of a driver upon first contact. As previously indicated, first contact is the driving itself, but after that, they note the characteristics of the driver including odor of breath, eye color, clothes arrangement, ability to produce license on demand, whatever they see in plain site in the car, speech pattern, ability to get out of the car unassisted, walking pattern to the rear of the car and anything else they can simply observe from the driver. Unfortunately, the police are basically on a rampage to convict of DUI once they smell alcohol on the driver's breath. That means they will document every single unfavorable characteristic about you while suspiciously leaving out of their report anything that might be construed as helpful to your defense. You must realize this when making any statements against you interest or performing any voluntary tests.
What are FST's and do I have to perform Field Sobriety Tests when ordered out of the car?
The Field Sobriety Tests (FSTs) or roadside gymnastics are psycho-motor exercises that NHTSA (government agency) dreamed up in order to test one's motor coordination. They are intended to see if a driver's normal coordination is impaired by alcohol. Problem is, the exercises are in no way "normal" and in this writer's opinion, should not be voluntary engaged by any driver. Unless you are accustomed to walking toe to heal with your hands flat at your sides, unless you can follow multiple verbal instructions at one time on the side of a dark road and unless you normally stand on one leg for 30 seconds without swaying, these tests are just not fair. As stated before, the police document every mistake that you make in the performance of these test and eagerly present the results to the Judge in order to convict you of DUI. In Maryland, these tests are not mandatory, the police will NOT tell you that, they may even threaten you with arrest, however, you do not have to perform them.
To blow or not to blow after arrest
The next question is, should I blow in the breath machine after I'm arrested. This is a more difficult question to answer because the answer is based on the circumstances of the individual person. Maryland's MVA does enforce certain sanctions for a driver's failure to blow in the machine, many times these sanctions can be worse than if you blew, particularly for first time offenders. In Maryland, your refusal to blow will most likely result in a license suspension for 120 days for the first offense and 1 year for the second or subsequent. There is no modification possible other than an election to install an interlock in your car for one year. Conversely if you do blow, and the BAC number is below .15, you only face a 45 day suspension of the license which is modifiable in terms of a work license. If you blow over a .15, the suspension jumps to 90 days with no modification possible other then the election of the interlock for 1 year, at the driver's expense.
To blow or not to blow continued...
Consequently, when asking whether one should blow or not, a driver needs to keep the MVA sanctions in mind when considering the decision. It is also true that if a driver blows into the machine and provides a breath sample in excess of the legal limit of .08 there is a fairly substantial chance the driver will be convicted of DUI based upon the BAC number provided. Therefore if this is not first time DUI, the likelihood of incarceration goes up very significantly should be factored into the equation. It is important to note that you have the right to discuss this important decision with a Maryland DUI attorney prior to blowing in the machine. This is a right that the police will not tell you about but it is a right that should be exercised in order to have the very best information in order to make this important decision.
Final note on the breath machines EC/IR II
The breath machines, like any other computer in existence today are not infallible. There are experts available who can testify to the vulnerability of the machines. Like any other machine or computer, it make mistakes. For example, the breath of the testing subject is assumed to be regular body temperature, this important because the entire calculation of the machine relies on this assumption. In fact, the breath machines test ampules are kept at an exact temperature and tested with an internal measuring device. You know what happens if the test subject has is sick, menstruating, or otherwise has an elevated body temperature? The resulting BAC can be artificially high. The machine measures the temperature of it own test solutions, do you think it measures your breath temperature?
There are a variety of other factors that can throw of the breath machine's accuracy but that subject is best left for experienced DUI defense counsel.
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