The July 4thHoliday is upon us, and with it comes celebrations, barbeques, good cheer, as well as DUI checkpoints. In case you don’t know, DUI is short for Driving Under the Influence, and DUI checkpoints are law enforcements way of searching for drivers that may have had a drink or two, and then arresting them for DUI – even though they are likely not guilty of any crime. Yes, I know there are zealots out there that truly believe that DUI checkpoints are good and are designed to find and stop drunk drivers, and if that were truly the case, I would support them fully.
The truth is someone who drinks 3 or 4 twelve ounce beers over a few hours is likely not DUI. But the reality is Law Enforcement Agencies receive federal grant money for every DUI arrest that they make. It’s all about money and politics. The moment an unsuspecting driver that drives into a checkpoint, or is otherwise stopped, and admits to drinking a beer or two, they are going to be arrested for DUI. The Law Enforcement Agency wants the grant money, so DUI arrests have become a funding event.
Most unsuspecting drivers will admit to the officer that they drank a beer or two because they believe that if they cooperate, they will not be arrested. I’ve had many a client tell me “I wanted to tell the truth" – but it’s not about telling the truth, it’s about a citizen’s 5th Amendment right under the U.S. Constitution to not say anything to incriminate one’s self, because “it will be used against you." The point is, a driver should NEVER make incriminating statements to any law enforcement officer – that is why the 5th Amendment of the U.S. Constitution exists.
After the unwitting driver admits to an officer that he/she drank a beer or two the officer will say something to the driver like “please get out of your car and let me make sure you are safe to drive" – and it all goes “downhill" from that point.
Thereafter, an officer will have the driver perform Field Sobriety Tests – even though the law does not require a citizen to do so – and although the driver may have performed the tests perfectly, the officer will later write in his arrest report that the driver “did not perform the tests satisfactorily," thereby developing the probable cause to arrest the driver. But the officer won’t tell the driver what the Field Sobriety Tests are really used for, and upon completion of these physical tests, the officer will say something like “I have one more test, would you please blow into this breath test device?" Again, wanting to cooperate, the driver agrees to blow into the breath device – even though the law does not require most drivers to do so. Then, Bingo, the officer tells the driver “you’re under arrest for DUI." And the unsuspecting, now in shock driver, is arrested for DUI and must now submit to a chemical test, either breath (blow into an evidential breath machine) or a blood test.
The reality is, had the driver not admitted to drinking the beers, not performed the Field Sobriety Tests, and not blown into the breath test device, the officer would have likely arrested the driver for DUI anyway, just based on the odor of alcohol. You may be asking: if the officer can arrest a driver based on the odor of alcohol alone, why did the officer have the driver do Field Sobriety Tests? Answer: so the officer can say the driver failed the tests – thus the driver is impaired. Odor of alcohol alone proves nothing –other than maybe the driver had an alcoholic beverage in his/her mouth at one point. But it cannot prove impairment. So the officer’s needs to have the driver do Field Sobriety Tests in order to gather evidence against the driver to later say the driver failed the tests and was therefore impaired.
Now the point of this article is not to get into the legality of DUI checkpoints, whether or not the officer even administered the Field Sobriety Tests correctly, the accuracy of the breath test device, or blood alcohol concentrations – these are different discussions for another time. The point of this article is to provide unsuspecting drivers tips to avoid a DUI conviction. Yes, an officer may arrest a driver on just the odor of an alcoholic beverage, but that is far from having enough evidence to convict a driver of the crime of DUI.
You may be asking: If I dont answer questions about drinking, and I dont perform Field Sobriety Tests, and I elect not to blow into the preliminary breath test device, I may still get arrested for a DUI? Answer: Yes, but as long as you didn’t fall on the floor when you got out of the car, there is no evidence of impairment to use against you. Remember, being arrested for a DUI is not the same as being convicted of a DUI. As for the evidential chemical test result, an expert DUI Defense Attorney can attack the validity and reliability of that result later on, as that is a separate battle.
So back to the point of this article, this July 4th holiday season, know your rights and study the following Twelve Tips to Avoid Being Convicted of DUI (Driving Under the Influence) as well as saving your driving privileges:
1. Don’t drink and drive! If you have been drinking, call a taxi or have a friend drive you home.
2. If you do Drive, Don’t park near the drinking establishment! Law Enforcement officers routinely drive through popular bar parking lots and note descriptions of cars in the parking lot and wait for the car to leave, and then invent some reason to stop the car.
3. Always drive safely. Most DUI stops are for traffic violations such as speeding, unsafe lane changes, not driving within the lane, illegal turns, etc. Be focused and attentive while driving so that you don’t give law enforcement a reason to pull you over! Drive at the speed limit. Be sure to turn on your headlights after dark, fasten your seatbelts, etc. Do not send text messages, do not use your cell phone, do not play with your car stereo, do not eat while driving, or do anything that will divert your attention from your driving.
4. Do Not drive though drive-thru fast food restaurants. Avoid late night munchies. Many fast food restaurants work with law enforcement, and if the fast food restaurant worker believes you are under the influence or smells alcohol, they will call the police. The fast food restaurant workers are trained to use various tactics to detain you, such as “it will take a few minutes to cook your order.. can you pull around and park and we’ll bring your food out to your car." While you are waiting, law enforcement is on the way. And yes, the fast food restaurant took your money too!
5. 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, and you likely wont know if you have it. When the test is administered correctly by the officer and Nystagmus is detected, it can be an indication that alcohol is present in the 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 – Drunk Driving. The HGN test is nothing more than a basic 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 field 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 whatever 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 that 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 field sobriety tests." Many law enforcement officers will tell you that if you pass the tests you won’t 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, so why give the officer evidence that will later be used against you?
Some officers will also tell you that if you refuse to take the Field Sobriety Tests, they will tell the court and your refusal to take the tests will be evidence that you are guilty. Field Sobriety Tests are completely voluntary and it is your right to elect not to take the tests.
[To Read the entire 12 Tips to Avoid a DUI Conviction This July 4th Holiday, go to my Blog at www.aggressiveduidefense.org ]
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