“To Blow or Not to Blow?” – What to do if you are stopped for DUI.
You are driving home after dinner entertaining a business client. Your heart pounds as you see flashing lights in your rear view mirror. You glance at your speedometer and realize that you were driving faster than the speed limit. You panic as you try and remember – did you have three or four glasses of wine with dinner? As you watch the officer approach your car, your mind races. What should you do?
As a lawyer this is one of the questions I am most frequently asked. The answer lies in the Constitution and is recited on television everyday: “You have the right to remain silent, everything you say can and will be used against you in a court of law. You have the right to an attorney.” Despite having heard this litany thousands of times, people think they can talk their way out of arrest. This will not work. Once the officer suspects that you are driving under the influence he is trained to catalogue every observation of you to support his case. This starts before you talk to the officer. He has noted the way you drove. He noted your reaction when he turned on his lights – you weaved in your lane of traffic. He noted when you pulled over, you struck the curb. When you roll down the car window, he will note that you have red, blood shot eyes and smell like alcohol. As this is the way that officers are trained, the more you do and say – the more evidence the officer will have to use against you.
Here is a list of things of do’s and don’t’s if you are pulled over for DUI:
#1 – Be Polite and Respectful to the Officer. The officer is just doing his job. If you are loud and rude, the officer will use this against you as evidence of intoxication.
#2 – Do Not Talk to the Officer. Assert the right to silence. You are required to give the officer your name, driver’s license and address. This can be accomplished by handing the officer your driver’s license. If the officer questions you, tell him you do not wish to talk to him and assert your right to remain silent. This is a hard rule to follow as many people are raised to co-operate with authority figures and think they can talk their way out of the arrest. However, the road side interaction is designed as a series “divided attention” tests by which the officer will accumulate additional evidence of your intoxication.
#3 – Do not perform Standardized Field Sobriety Tests (SFST). The officer asks you to step out of the vehicle and orders you to perform some tests. The SFSTs provide the officer with the opportunity to make further observations of you, including your balance, physical co-ordination and ability to follow instructions. Standardized FSTs include the walk and turn test, Horizontal Gaze Nystagmus test (HGN) and one-leg stand test. The officer will not tell you this – but you can refuse SFSTs. SFSTs are negatively graded, and are almost impossible to pass. Remember that you are very nervous and you have not practiced these tests of physical agility. You may also be next to a busy road and have flashing lights and traffic to distract you. If the officer is asking you to take these tests, he is planning on arresting you. You have nothing to gain by performing SFSTs. It is permissible to politely decline the SFSTs.
#4 – Do not lie to the Police Officer. If the officer asks you whether you have been drinking, it is better to assert the right to silence than to lie to the officer. Telling the officer that you had four glasses of wine is not going to help your case. You have just testified against yourself.
#5 – Refuse the roadside breath test/PBT. This test is administered on a portable breath test machine at the roadside, usually prior to your arrest. The officer can use the presence of alcohol on a PBT to demonstrate that he had probable cause to arrest you. If you have consumed any alcohol do not take this test.
#6 – Refuse the Breath Test at the Station. You have the right to refuse the breath test offered to you at the station. The purpose of this instrument is to collect scientific evidence against you for trial. This evidence and the officer’s observations of you will be offered as proof that you were driving under the influence of alcohol. Unless you have not been drinking, you should not submit to the breath test. Many clients report “felt fine” when they submitted to the test and were surprised when they failed. This is because their bodies have developed a tolerance to alcohol. It is more prudent to refuse the test. Moreover, in Illinois, unlike other states like D.C. and Virginia, it is not a crime to refuse a breath test. Illinois does have an implied consent law or summary suspension law. The purpose of this law is to encourage people to submit to the breath test. It provides for a 12 month suspension of your driver’s license if you refuse to take the test for a first offense. However, if you take the test and fail, your license will be suspended for six months anyway. Further, by providing the scientific evidence you have increased your chances of being convicted of DUI. The better course of action is to decline the test, take the civil suspension. Allow your lawyer to contest the criminal DUI and civil suspension case. By asserting your rights and refusing to confess or take tests, you will provide the officer with less evidence and will give your trial attorney a better chance of winning your case.
#7 – If you feel you are being badgered assert your right to a lawyer. If you ask for your lawyer the police must stop asking you questions.
Boyd & Kummer, LLC, 312-634-23128 – Scott Kummer, Juliet Boyd