So, you had a couple drinks and hopped in your car. Now you're being stopped by the police. What should you do?
With the holidays fast approaching, the Riverside County Sheriff, CHP, and local police agencies are undoubtedly preparing to ramp up DUI enforcement in Temecula, Murrieta, Wildomar, Hemet, and most other cities across Riverside County. Read this article to learn about your rights and to prepare yourself for an encounter with law enforcement if you're ever pulled over for suspicion of DUI.
As a criminal defense attorney, people ask me this question all the time: "what do I do if I've had a few drinks and then get stopped by the police?" This article explains what you should do (and not do) if you're pulled over for suspicion of DUI. Building a better defense to a DUI charge starts before you're arrested. Knowing your rights and what tests you're entitled to refuse can help you immensely in the long run.
The best advice is to avoid driving after drinking alcohol altogether. However, this advice has proven to be as ineffective as teaching abstinence only sex education to teenagers. The results are equally disastrous. People still get pulled over for suspicion of DUI, and haven't got an idea of what to do.
This list of recommendations only applies to people who believe that they may be or know that they are too impaired to drive and/or over the .08% legal limit. Keeping a chart like this in your car can help you determine if it is safe for you to drive. If the chart tells you that you're BAC is under .05%, feel free to disregard this advice. For all others, here is a list of what to do.
What To Do If Pulled Over For Suspicion Of DUI
- Once you see the blue and red flashing lights, pull over as soon as feasibly possible, preferably to a well lit area with a flat surface.
- After you pull over, get your license, insurance card, and registration handy, as the investigating officer is going to ask you for these items.
- When the officer approaches your car, be polite and cooperative. DO NOT get into an argument about the reason you were stopped. There is a time to challenge the validity of the officer's stop. However, on the side of a road after having a few beers is not the time.
- Do not answer any of the officer's investigative questions! I repeat, do not answer any of the officer's investigative questions! The officer is not your friend. He is there to do one thing: to investigate you for a crime and take you to jail if he suspects you're guilty of that crime. An investigating officer will likely ask you some variation of the following questions:
- Where are you coming from?
- Where are you going?
- Why were speeding, swerving, driving so slowly? Why did you roll that stop sign, run that red light? Etc.
- How much have you had to drink tonight?
- Do you feel sober enough to drive?
- Do you feel the effects of alcohol?
- What time was your last drink?
- When the officer begins with the investigative questions, politely tell the officer: "Officer, my friend Mike is an attorney and he told me it is best if I refuse to answer your questions. I understand you are just doing your job, but I will not answer your questions." You are acting within your rights by refusing to answer any investigative questions.
- However, continue to do exactly what the officer directs you to do, i.e., exit your vehicle, stand on the sidewalk, give him your license, registration, etc., except . . .
- REFUSE TO PARTICIPATE IN FIELD SOBRIETY TESTS. Field sobriety tests are voluntary, and you are well within your rights to refuse them. These tests are designed for you to fail, and your performance on them will be used against you in trial. YOU WILL NOT BEAT THE FIELD SOBRIETY TESTS. There are a variety of field sobriety tests, including: (1) heel to toe walk and turn; (2) horizontal gaze nystagmus test; and (3) one leg stand. If an officer begins conducting field sobriety tests, politely tell the officer that you do not want to participate in the field sobriety tests.
Often, an officer will not tell you that he is beginning field sobriety tests. He will simply shine a flashlight into your eyes and ask you to follow his finger or a pen laterally across your plane of vision. This is the "nystagmus test," and it is often the first field sobriety test an officer will perform. If an officer springs this test on you without warning, politely tell the officer that you will not participate in any field sobriety tests.
THE CATCH 22: If you perform field sobriety tests, you're not going to pass, and you're going to jail. If you refuse them, you're most likely going to jail as well. However, by refusing the field sobriety tests, you're helping your case in the long run. Remember, the government has to prove your guilt. You do not have to prove you innocence. Without any field sobriety test results, the government will have a more difficult time proving your guilt.
8. "Breathalyzers" and Blood Tests. The short and sweet advice: (1) refuse to submit to the onsite breathalyzer; (2) ask for a blood test.
Breathalyzers are the informal name for blood alcohol breath test devices used in DUI investigations. During most DUI investigations, officers perform two breath tests. The first test is the preliminary alcohol screening (PAS) test, which officers will ask you to perform onsite. This test is voluntary and you may and should refuse to submit to the PAS (unless you are under the age of 21 or on probation for DUI). If you submit to the PAS, the results will be used against you.
The second test is a post-arrest chemical test, which you have already given implied consent to perform by obtaining a license to drive in California. This test is mandatory, and refusing to submit to a chemical test can result in an automatic one-year driver's license suspension. After you're arrested, you have the option to select either a blood or breath test. Deciding which test to take depends on a couple factors.
If you're thinking, "I'll just refuse the chemical test and take the one-year suspension and avoid a DUI charge altogether!" Good thought. However, law enforcement can force you to submit to a chemical test if you refuse, which will result in an automatic one-year suspension in addition to a DUI charge.
Here are the factors to consider when electing between a breath or blood chemical test. First, consider whether your blood alcohol concentration (BAC) is rising or falling. When you drink, your BAC rises while you continue to drink, and continues to rise for a short period after you have stopped. The average time for a person's BAC to peak ranges from 15 minutes to about an hour. Once you peak, your BAC will begin to fall as your body continues to eliminate the alcohol from your system. The breath test will almost always be performed significantly quicker than the blood test (within 15-20 minutes). In Riverside County, it typically takes about an hour for a blood test to be performed. Accordingly, consider how much time has elapsed since you stopped drinking. If you drank very recently before driving, it might be best to do the breath test before all of the alcohol is absorbed into your system. If it has been a long time since your last drink, you might want to choose the blood test, as your BAC should continue to fall before your blood can be drawn.
Second, consider the reliability of the tests. Blood tests are typically, but not always, more accurate than breath tests. They do not give false positives for mouth alcohol, and can be retested. On the other hand, breath tests have a tendency to be inaccurate, and a Riverside County criminal defense attorney can often attack the results of the breath test for a variety of reasons (lack of/improper calibration, mouth alcohol, margin of error, etc.). With these factors in mind, request the test that you believe is best for you.
I wish you all a safe and happy holiday season. Please take advantage of a taxi service if you do drink this holiday season. Mobile rideshare apps like Lyft and Uber make getting a safe ride home especially easy. In the event that you are arrested for DUI in Temecula, Murrieta, Wildomar, Menifee, Perris, Hemet, San Jacinto, Lake Elsinore, Corona or any other city in Riverside County, please contact Riverside County DUI attorney Mike Donaldson for a free case evaluation.