The minute the officer says, "I'm placing you under arrest for DUI," and pulls the handcuffs off his utility belt, most people will go into a state of shock, but this is the time to be the most attentive to your defense. Stay alert!
The officer is going to read you your constitutional rights, usually off a small note card size card they keep in their pocket. Number 1 is YOU HAVE THE RIGHT TO REMAIN SILENT. Exercise that right.
Officers will and may genuinely like to make conversation with you after placing you in cuffs and putting you in the backseat of the patrol car. However, your defense requires that you remain POLITE, COOPERATIVE & SILENT.
You can't explain yourself out of the handcuffs, or out of the charge, so don't try.
Waiting for the BAC Room
When you get to the BAC station (usually the located at the police station or the jail), the officer will re-read your constitutional rights. Number 3 or 4 on the list is YOU HAVE THE RIGHT TO AN ATTORNEY. Exercise this right by saying, "I'd like to speak to my attorney as soon as you can possibly reach them for me." Have that name ready and that contact information ready.
The officer should wait a reasonable amount of time (15-30minutes) for a call back, and should then give you a reasonable amount of time to speak to your attorney (15-30minutes).
You should inform the attorney if you have any prior DUI related history, and you should discuss how to protect your interests during processing at the station.
Your job at this point is to be very attentive to where the officer is from the time you reach the station to just before you are asked to submit to the BAC test.
The Mouth Check
Once at the station, the office is going to be eager to get you processed, and move on to the next potential DUI stop, but they have many technical requirements to uphold before asking you to submit to a Breath Test.
The first is a mouth check. The officer can either ask you if you have something in your mouth (like a tongue ring, a removable tooth, gum, chew, etc...), or ask you to open your mouth and check. If the officer asks, you should let the officer know what's in your mouth.
If the officer doesn't ask, or doesn't check, you should remember that, and tell the lawyer you ask to talk to.
Don't do it. You have the right to remain silent, so don't answer any questions for the officer regarding what medications you take, what time you think it is, where and what time was your last drink.
These answers WILL BE USED AGAINST YOU.... politely remind the officer that you wish to remain silent.
The officer has to kill at least 15 minutes before asking you to submit to the test, so they try to get you to answer these questions after checking your mouth and letting you talk to an attorney. don't do it.
The 15+ Minute Observation Period
By law, the officer has to make sure that you don't eat, drink, vomit, or smoke for at least 15 minutes prior to taking the breath test. Even though you may still be in shock, thinking about spending the night in a jail that smells like urine sacks, on the floor of the restroom maybe because it's overcrowded, you best pay attention.
If the officer leaves the room, turns around, or does anything that distracts the officer from observing whether or not you ate, drank, vomited, or smoked, YOU NEED TO REMEMBER.
The Implied Consent Warnings
Anyone who exercises the privilege of driving on a public road, or obtains a driver's license has, by that action, implied that they consent to taking a BAC test when asked to do so by an officer who has reason to believe you are impaired by alcohol or drugs, but you don't have to take the test. Usually its a good idea to submit to the test.
Before doing so, the officer must accurately warn you what will happen if you take the test or refuse the test. And if you are confused, the officer must clarify any questions you may have, so......
DON'T BE SHY TO ASK QUESTIONS, ASK QUESTIONS, ASK QUESTIONS, AND ALWAYS REMEMBER THE OFFICER'S RESPONSES.
TO BLOW OR NOT TO BLOW?
Deciding to take the breath test is a decision that should be made after all of your questions and rights have been explained to you by an attorney, and after the officer clears up any confusion you may still have about taking the test.
Most people are very reluctant to blow in fear of giving evidence against themselves, but don't forget that refusing to blow is also evidence that you are afraid that blowing will reveal the evidence against you. You should talk to an attorney before deciding.
Taking the Test
When taking the breath test, pay attention to any malfunctions that happen. Breath Test Machines are most reliable for one thing, malfunctions.
The officer will ask you to give 2 samples, usually within 2-3 minutes apart. If the machine malfunctions, the officer has to start the process all over again.
That means a new 15 minute observation period, and then a another attempt at 2 samples. Pay attention to these mistakes, and how long the officer actually waits. If you mention the mistake, be polite, and most importantly DON'T ACT LIKE A JAILHOUSE LAWYER. Act like the unsuspecting, inexperienced individual that you are, relatively speaking.
Gathering My Own Evidence
After the officer is done processing you, you have the right to record and collect evidence on your own behalf. Most people don't have investigators or lawyers on call to start immediately, but phone call to one good attorney is all you need to start preparing your defense.
If the officer is going to book you into the jail, you should demand that the officer take you to a hospital, so that you can have your blood drawn and preserved for testing as evidence that may counter the Government's evidence obtained against you.
You should make mental, if not written, notes about the things that stood out in the investigation and stop, and prepare to share those with your attorney.
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