Stopped for a DUI? What are Your Options?

Mon, Jul 25, 2011

General Legal Issues

Did you party a little bit too much at that holiday party and then make the mistake of driving home? Or did you really think you were okay to drive? Obviously, driving while intoxicated is not okay, and SmithLaw advises everyone to not drink and drive. It’s common sense.

Many people have trouble defining when they are drunk and not okay to drive. In Florida, a blood alcohol level of .08 is considered driving under the influence. This is just about 3 drinks for the average 160 lb. male. Here is a link to a chart (http://www.ou.edu/oupd/bac.htm) which shows what is usually accepted as the number of drinks someone can have and be considered drunk. (Please note that this varies by person or situation; also, pay attention to the myths about drinking that are busted on the linked website.)

Let us get back to the holiday party. You are driving home after a few drinks and you see those flashing lights in your rearview mirror. What should you do? (Hopefully this is your first DUI stop, but if it is not…then the rest of this writing might not pertain to you. So let us assume it is your first stop.) Almost everyone panics when they see those lights, but all legal professionals are going to advise you to stop when you safely can and pull over. Evading a law enforcement officer is not going to help anything. After you stop your car is when the advice starts to vary.

Here is an outline of what might happen and the best advice we can give you:

As in all routine traffic stops, the officer is going to want to see your license, registration, and proof of insurance. Be sure you always know where those are whenever you drive and have them handy. Many officers watch body language in DUI stops, so make sure you pay attention to your actions and manner while handing them over and throughout the rest of the stop. The officer will likely note in his report if you had trouble providing these pieces of identification. Listen very carefully to the officer and remain pleasant and attentive. Make sure you answer questions, but do not feel the need to chat up the officer.

Be ready for the question that all DUI stops involve, “Have you been drinking tonight?” How do you answer this question? Some people deny it because they think it will help their case. Some people answer it because they feel that it’s soon going to become obvious. We recommend you answer the question with a “Yes, Officer.” and leave it at that or avoid answering, do not elaborate either way and do not start telling them how many you had.

While the officer was checking your license and registration and asking that famous question, he probably already began an investigation of sorts. Did the officer lean in really closely? He was trying to smell alcohol on your breath then. Did he shine the light in your eyes? Then he was trying to see if they were bloodshot or had enlarged pupils.

Depending on what the officer decided about your level of intoxication, he will either send you on your way or ask you to step out of your vehicle. What is he going to do while you are getting out of your vehicle? He is going to pay attention to your body language. Are you stumbling or hesitating? Are you having trouble shifting your weight to get out of the vehicle? How is your balance?  Remember that you are being watched all the time during this stop, and try and hold it together.

Some people ask, “Should I get out of the car?” Well–you could refuse, but but that may arouse suspicion, and the officer will most likely use it against you in court. You probably want to be cooperative, especially if you don’t have anything to fear. Getting out is ultimately up to you, but if you do not get out of the car then the stop will end a lot sooner (probably with you being taken in). If you decide to get out, they will begin conducting their Field Sobriety Tests.  We have all seen those movies where people are saying the alphabet backwards or touching their finger to their nose, etc… Well–this is about to happen to you. Be prepared for tests like these mentioned, as well as tests that measure your balance. This is a really important time to listen carefully, ask questions, and be sure you are ready to perform the test as directed. If you have any disability that might prevent you from performing well, then mention it. Keep your nervousness in check, as it is more likely to affect your performance. The officer will provide instructions on what to do, follow his signals and do not begin prior to him instructing you to do so. And keep in mind that you are probably on camera. Many officers use video to film these types of stops. This video can be a crucial piece of evidence in court, so realize that the officer is not the only one who will see your actions. After the Field Sobriety tests the officer will usually determine if he should read you your rights or not. If he does, then you are under arrest and it might be wise to ask for legal counsel prior to answering further questions.

The next stop is the breathalyzer (usually conducted at the station) to confirm the arresting officer’s suspicions. Forget asking for legal counsel in order to decide if you should take the breathalyzer; that is one of the few things the law says you do not have the right to ask legal counsel about before doing. Many people will tell you not to blow. That is fine, but please understand that Florida law has stiff penalties for not blowing. There is implied breathalyzer consent in obtaining a Florida driver’s license. If you do not blow, your license will be automatically suspended for up to a year. If you do blow, you will have a suspended license for up to 30 days and then you will be under consideration for a hardship or business purposes license. That is a big difference — sometimes blowing is a better option overall. If you do not like the breathalyzer results, be aware that you have the right to ask for an independent blood lab to test your blood and the jail must cooperate with this request and allow you to contact them in a reasonable amount of time.

A breathalyzer result of .08 or higher is considered above the limit in Florida. However, even if you pass the breathalyzer with a result lower than .08, it’s only one piece of evidence in the case. You can still be arrested for DUI. This is another reason to have paid attention and remained respectful during the rest of the procedures, as they are all part of the case. Be advised that the rest of the arrest procedures vary by county and situation. Florida law is complex when it comes to these matters. A qualified attorney is the best person to consult with if you have further questions. And remember, do not let that party drinking get out of control. Don’t drink and drive.

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