Written by attorney Michael James Kennedy

What to Do, and Not Do, If Stopped for DUI [California]

  1. Do not flunk the attitude test; be civil and polite, because being otherwise will never help you, and it will generally always hurt you in the eyes of the jury and judge. Remember that much of what goes on in the criminal justice system, from cop contact to DA prosecution to judge scolding/punishing, is part of a grand power game, and you are the pawn. Do not allow yourself to become excessively victimized by reacting to any of their pathologies, because then they will have won.

  2. Do NOT ever say that you have had any alcoholic beverage to drink, nor when, nor where, nor how much. Indeed, do not talk to the police at all, other than to give your name: any statement, before or after an arrest, will be taken down, possibly twisted, and always used against you. It NEVER, EVER HELPS to talk to the police in such circumstances, NEVER. They are not there to help you; they are there to put a case together against you. There are powerful grant money and penalty assessment incentives for government to press DUI through arrest to conviction; there is no similar incentive for the cops to be good or helpful to you. And this is not a Miranda-based cautionary note, because Miranda applies only when you are in custody and then only when they are interrogating you. The rule about not talking to the police about anything applies at all times, before and after custody, and whether or not you are being interrogated. Keep your mouth closed [except to blow into the breath device].

  3. Do NOT agree to take any field sobriety test, no matter if you have been drinking or not, and your explanation for declining to do such is that you have been advised [because I am doing so right now] that there is no established correlation between the performance on any such test and impairment by alcohol. [You should give some such reason to preempt a later claim that you refused because you sensed you were guilty. You are, instead, politely declining because you know it is a stacked deck in which the police want to give the false impression that you could not perform things because you are drunk.] If a cop has decided to administer an FST, he has decided he is going to arrest you no matter what, so do not give them extra ammunition by attempting to perform that which can never be.

  4. Do NOT agree to take the pre-arrest breath test [preliminary alcohol screening device, or PAS], unless you are under 21 or on probation for drunk driving, whether or not you have been drinking. Your explanation for refusing this test is that you have been informed [because I am doing so right now] that they are inaccurate and can be tampered with in the field to give false high readings, and if you are still absorbing alcohol [which for some people can be anywhere between 20 minutes and 6 hours after drinking stops], they always give false high readings any way..

  5. If you are arrested for drunk driving, you will be given a choice of blood or breath test. Choose the breath test. You do not have an “absolute right" to a choice [any attorney who says you have “absolute" rights to anything generally does not know what he or she is talking about and should be avoided at all costs], but you have a statutory right to a choice under most circumstances, and there are things that can be done if you are not given that right. If you choose the breath test, they are supposed to tell you that you have a right to a back-up test of blood or urine for retesting. They generally only tell you that you have a right to back-up test of blood, if they tell you any such thing. Tell them you want a back-up test of urine. The cops will generally lie to you and tell you that you do not have such a right. Lies by cops don’t bother judges, but they often bother the more concerned jurors.

  6. After you submit to whatever test you have chosen [always breath], then be quiet until they release you. Never, ever talk to the cops, never try to explain, never try to get them to help you, never ask for a break, because your pleas just embolden cops to harass you more. It is a power game. They are not going to help you, so just be quiet.

  7. After you get out of custody, make sure you call the DMV number on the pink form you have been given within 10 days of the arrest and tell them you want a hearing, or you will lose your chance for a hearing with the DMV. If you are hiring an attorney within 10 days, he will make that call for you.

  8. And you should always hire an attorney for these sorts of things. If you needed brain surgery, you would not start drilling on your own skull, but would instead hire an expert, and DUI is no different. A properly experienced DUI attorney can do more about these sorts of charges than you can imagine, because DUIs are prosecuted based on a presumption that they will not be fought, and based on a hope that jurors will be part of the neo-prohibitionism regime which has promoted the “Salem Witch Trials" public and fiction-based hysteria about DUI, and based on junk/voodoo science that would not be admissible in any other sort of criminal case, and which can accordingly be attacked, if you have an attorney who knows what he is doing and who has brought on a forensic expert who knows what he is doing. “If you think hiring a professional is expensive, wait until you hire an amateur." Red Adair

  9. Do not drive under the influence of alcohol, but do not fall for the propaganda of “no drinking and driving," because it is not illegal to drive after you have been drinking. Don’t heed or fear the exhortation of “Call 911 if you see a drunk driver," because you cannot see a drunk driver. The system wants to turn the populace into government-loving stoolies against each other, as was the practice in the ‘30s Germany, finger-pointing/phone-dialing at every vehicular weave. I weave all over the road and don’t drink alcohol. Don’t become a stoolie – that is the lowest of the low.

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