Read this article several times to ensure that the information is retained in your long-term memory because you may need it in the future.
To avoid a DUI arrest and conviction, the simplest and most obvious advice is to never drink and drive. After a night of drinking, use a designated driver, a bus, Uber, Lyft, or a cab to move around; $20 is much less expensive than a DUI, and if someone gets hurt or worse, your freedom and nearly all of your possessions are at risk.
However, if you have been drinking and driving, take into account the following advice: They won’t necessarily prevent you from being arrested or even from being found guilty, but they’ll offer your defense lawyer an opportunity to successfully contest the probable cause (“PC”) that led to your arrest, which might help you avoid a conviction, keep your license, and prevent your insurance premiums from increasing.
1. Regard Yourself And Be Polite
Keep calm, roll down your windows, pull over, turn off your ignition, put your hands on the wheel, and respectfully greet the officer with as few words as you can, such as “officer” and a courteous nod, if you see the dreaded red light in your rearview mirror.
(If the person is a deputy sheriff, use the word “deputy” to demonstrate a level of awareness that your lawyer might later find helpful.) Always be courteous, even if you end up getting arrested. The policeman will request your registration and license. Provide them calmly, without any sudden motions that the officer might interpret as threats.
2. Be Patient
Where you’ve been, where you’re going, what and when you last ate, when you last slept, and, of course, what, how much, and when you drank are just a few of the questions the officer is taught to ask you in an effort to provoke an incriminating response.
The officer is obviously trying to determine whether there is PC to detain you by asking you these questions. The officer’s duty is to do it. At this point, your role is to be courteous and refrain from speaking. (Keep in mind that there’s a good probability that you’re being recorded!) You could be tempted to answer, “I had a few beers a few hours ago,” thinking that the officer will be satisfied and go on his merry way. Poor idea.
The issue is as follows: In California, a blood alcohol level (“BAC”) of.08% by volume justifies an arrest (and DMV action against your license). The BAC increases gradually as you drink, peaks, and then starts to decline.
Therefore, if you admit to drinking hours earlier, the officer will assume that if she arrests you, the results of the test could show a declining BAC (for example, first.07, then.065), from which a jury could conclude that your BAC was greater at the time you were stopped.
Get it? The ideal phrase to use is “I invoke my constitutional right to remain silent, officer.” Although this will make the police more suspicious and possibly even enrage him, it cannot be used in court!
Now, some people feel compelled to comment. Bad idea once more. But if you absolutely, positively had to open your mouth (like the large mouth bass placed on the wall…because it opened its big mouth), it may be less dangerous to admit you drank five or ten minutes before to the stop than to claim you did so hours previously, according to some lawyers.
You can also check about other trending news by visting the links below:
- Texas City Police Report That A Bicyclist Was Killed In A Hit-and-run Accident
- A Texas Man Fired At Police Before Turning Himself In To The Fbi For January 6 Charges
Why? Because if you go to trial, your chemical test expert witness may have a valid case to contend that you were under the.08% limit when you were stopped because your BAC was rising rather than falling at the time of the stop. Get it? (Note: If you follow the advice in this article, it will be tougher for the prosecution to prove that you were impaired, even if your BAC is below.08%.)
3. Reject All Field Sobriety Tests
Field sobriety tests (“FSTs”) such the gaze nystagmus (bouncing eyeball) test, the walk-and-turn test, the stand-on-one-leg test, the finger-to-nose test, and the Rhomberg balancing test will be requested of you by the officer, if not required.
Even if you are being cajoled or threatened with arrest, respectfully decline each test; if they think it necessary to arrest you, you will be arrested, I assure you. (CAUTION: I’m only referring to FSTs here; I’m not talking about refusing chemical tests. See the section below for further information on chemical tests.) Why not reject FSTs? Due to the fact that FSTs have two purposes: (1) they let the officer see how well you paid attention to the FST instructions, and (2) they let you demonstrate how effectively you can actually perform the FSTs.
Why would you perform them if the officer would use anything that was slightly off against you? Yes, there is a good risk that the officer will still arrest you if you deny FSTs, but at least your attorney will have information to work with if the case goes to court.
(Note: If you are on probation for a prior DUI and your probation rules mandate that you submit to FSTs, you must comply with them or you risk being found in breach of probation and receiving a harsher punishment for the prior DUI. If you are unsure of the terms of your probation, ask a lawyer to go through them with you.)
4. Refuse to Submit a Preliminary Alcohol Screening Test (PAS)
The officer may then ask you to take a preliminary alcohol screening test (or “PAS” test for short). Police officers employ portable breathalyzers, or PASs, during DUI stops. If you are over 21 or not on probation for a prior DUI, you are not required to take a PAS test. Politely decline, and do not be duped by an officer’s justification for making you take it, such as “if you’re not drunk, it’ll prove it, and we’ll let you go.” (The law allows police to tell you lies while conducting a criminal investigation.)
5. If Arrested, Submit A Chemistry Test
If, despite all of this, the officer still believes that you are guilty of DUI, don’t fight or act rudely; maintain your composure. You will have the option to submit to a blood or breath test after being arrested. Each has benefits and drawbacks; however, choose which test to take is outside the purview of this essay.
The prosecution will ask for a sentence enhancement (which the judge may well impose) if you are found guilty of DUI with refusal, and you can expect the DMV to suspend your driver’s license for at least a year (and the standard of proof the DMV uses is much lower than that used in a criminal court so even if you win the criminal case, your license will still likely be suspended).
6. The Essence: Drop Probable Cause
The idea here, if you’ve caught it by now, is that the less interaction you have with the police, the less reason the officer will have to arrest you. Your DUI defense attorney will have more evidence to use to demonstrate that the arrest was illegal, which will support the claim that the chemical test was also illegal, the less PC you create with your movements, speech, refusal to remove your sunglasses during the day, refusal of FSTs, and refusal of PAS.
You might have gone right on a green light, but “too far” from the right curb, supposedly in violation of Vehicle Code § 22100(a). The officer will search for anything to stop you in order to investigate further. The officer may then detect (or assert to detect) the odor of alcohol coming from your car. You may have a good excuse, like your passengers, but you’re in a pickle right now.
When the officer looks at your eyes, he or she will almost certainly comment that they are “red and watery.” (In all the years I’ve been practicing, I’ve never — not once — read a police report on a DUI where the driver’s eyes weren’t described as “red and watery.”
Have you ever had two or three drinks and had normal vision? In a recorded hearing, a seasoned DMV hearing officer acknowledged to me that “once” she had a case where the police report didn’t state that the eyes were “red and watery.” She stated it while grinning.) Again, the less you interact, the less PC you are. Even while you still risk being detained, this gives your DUI defense lawyer significantly more information to use in both criminal court and DMV proceedings.
7. Never Fight When Arrested; Refuse To Rather Stay Calm, Polite, And Quiet
Keep your composure if you are arrested; you’ll be let out soon enough. Fighting is also dumb, as is even rude argumentation, so avoid it! Keep it for the courtroom!
Keep in mind that you are entitled to 3 completed local phone conversations (or 5 if you are the custodial parent) for free (or at your expense if not local). Call a lawyer, a bondsman, a relative, or another person, and, if you can, leave a voicemail, so that you may later prove that your voice was not slurred in spite of what the officer could have noted in the arrest record.
Advice From Us
Don’t drink and drive is still the best course of action to avoid a DUI arrest and conviction. First-time DUI offenders can spend zero to 180 days in jail, while those with past DUI convictions may receive a year-long term. The minimum fine is $390 plus “penalty assessments,” which brings the total to a minimum of about $1,700.
This amount excludes thousands in attorney fees, the cost of DUI traffic school, participation in a community service program (such as CalTrans), higher insurance rates, and the price of installing and maintaining an ignition interlock device. Uber costs between $8 and $20 for a local trip. Know what I’m referring to?
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