Please do not drink and drive, it can be dangerous like driving while talking on a cell phone, being very sleepy or dealing with unruly or disruptive people in your car or otherwise being distracted.
But, if an officer stops you and asks if you have been drinking, then you are in the middle of a DUI stop and most likely, ARREST. What is the best way to protect yourself in this situation? My advice, after more than 12 years of practicing criminal defense, including a DUI practice that is more than 50% of my work, is the following:
There are no Dash Cameras in Colorado
There are no police dash cameras in Colorado (OK, 3-5 agencies in the state have them, but only some Erie PD cars in Boulder County). This is important because there are few if any ways to show the police officer made a mistake or to counter the officer that wants to lie. The lack of video and audio evidence means the entire DUI case is the officer's word and most people believe officers.
Why are there no police dash cameras? Every year the legislature changes the DUI law to make it tougher and more expensive, but they never ask for better evidence. Juries hate DUIs and many think that if an officer arrested you, then you are guilty. A Boulder police car has every imaginable piece of technology, but no dash camera or audio. What are they hiding?
Do not answer the question about drinking
Do not answer the question about drinking. A lie makes you look guilty, no one will believe you if you say 1 or 2, and more than that likely supplies the officer with enough to arrest. Just provide the officer with your drivers' license, registration and insurance -- have it ready before the officer gets to your window. That is all that is required by law. Speak as little as possible.
Do not show your tongue
Do not show your tongue. This is a search to see if you have a green or brown tongue. Police, judges and prosecutors are trained that this means you have smoked marijuana. There is no science behind this. This theory was made up by a California cop 30 years ago and has become "knowledge" based on its repetition, not investigation nor scientific theory.
Do not agree to get out of the car
Do not agree to get out of the car. The officer will ask you if you are willing to step out of the car. This is a question requesting your consent. If you agree, you have just consented to a search. Say "no thanks" or "do I have to?" At this point, the officer will order you out of the car. This will give your attorney the right to challenge this decision by the officer.
Do not participate in Voluntary Roadside Maneuvers
DO NOT DO THE VOLUNTARY ROADSIDE MANEUVERS OR STANDARDIZED FIELD SOBRIETY TESTS -- At some point in the stop, the officer will say something like, would you be willing to do some voluntary roadside maneuvers? Again, the officer is asking for consent to search you. Your best move is to refuse. There is no consequence to refusing VRM in Colorado. Studies show very few officers conduct and score these tests correctly. Studies show that these tests are designed for failure, meaning that most people, drunk or sober, will fail them.
No Portable Breath Test
Do not agree to do the portable breath test or PBT. This is a handheld device that some officers will have you blow into to determine alcohol presence. It will provide a BAC number, but these devices are so unreliable that they are not allowed into evidence at trial. They can only be used to determine probable cause to arrest. (If you know you are under .05 BAC, then you should take this test, but if there is any question, do not.)
Choose a test once in Cuffs
At this point, you will likely be arrested and advised that you must take a chemical test pursuant to Expressed Consent. I suggest taking a test. Blood is more accurate if collected and tested correctly. Breath will not show presence of drugs, if that is an issue. If you know you are really drunk, you probably should refuse. This is due to draconian drivers' license consequences for people over .17 and mandatory jail for people over .20.
Remember, if an officer asks you a question, s/he is seeking your consent and if you give it, you take a weapon away from your attorney. If you are uncertain if an officer is making a demand or asking a question, then ask, "Do I have to?" and state "I do not want to."
The above advice is meant to give you the best chance to fight your case at motions hearing and trial, in my opinion. Remember, nothing is on video or audio, even at the jail where you see cameras, so it is your word against the officer. If we had dash cameras, I would change my opinion. Ask your elected officials and the local press why there are not dash cameras in police cars. We should have this basic protection against police mistakes and outright lies. This also protects police from lawsuits.
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