What to do if pulled over for a DUI

Over my 24 year legal career, first as a Prosecutor and now as a full time DUI and Criminal Defense Attorney I have probably been involved in now thousands of DUI cases including close to 50 jury trials.

While many lawyers tend to overcomplicate and oversell the defense of a DUI case, if you have done a lot of them, particularly as a Prosecutor, where I helped many juries convict people of DUI or DUI related charges, the issues in these cases are fairly simple and straightforward.

Without trying to sound defeatist, as a Prosecutor I rarely lost one of these cases at trial, and when I did it usually was when the defense or the defendant himself deprived the Prosecution of evidence they needed to win the trial. So let's go through the very basic elements of how almost every DUI case proceeds and will then get into the do to and not do scenarios at the end of this article.

The majority of DUI cases starts with some kind of traffic stop while you are actually behind the wheel. If you are behind the wheel while the car is in any kind of motion at all, even minimal motion, you have actually just proven up half of a DUI case for a Prosecutor. You were Driving.  Driving is any volitional movement of a vehicle. More on that later as there are exceptions.

Some traffic stops are just that. The officer sees a tail light out, or a tag expired and the case begins this way. More often an officer will tell you they observed you weaving or lane straddling and suspect you of DUI. Now, they do not always actually see this, but unless they are rolling a dash cam, they can pretty much say what they want.

I have personally been in police ride alongs with the CHP and have observed them watching drivers at night and they are particularly good at spotting lane straddlers. Local law enforcement are not nearly as good at enforcement as the CHP because this is all they do day and night. If you have been pulled over by the CHP, your odds of success just went down markedly.

Once you have been pulled over, and are safely at the side of a road, your DUI investigation just began, and you do not even know it. The very first thing an officer who suspects you of DUI will ask you is, how much have you had to drink tonight. By phrasing it this way, the officer can get right past the presumption that you had anything to drink at all. It's a set up question. Unless the officer has made an error, the vast majority of drinking drivers will admit to drinking…something. By doing so, the driver has now provided the officer with Probable Cause to continue his investigation and you will now be getting out of the car, and in most cases, you are probably already going to jail.

Now, had the driver said NOTHING, and maybe that is in fact the truth, you provide your defense attorney with something to work with. Probable cause is still up for grabs, it can be argued. Volunteering anything to a police officer is not required and it never helps you.

The next thing that happens, with exceptions are the road side sobriety tests, usually 3 or 4 of them, sometimes more. To be clear, there is NO legal obligation to perform these tests. All they do is provide needed evidence to the Prosecution. Politely decline. More often than that Police Officers will subjectively say you failed them and the Probable Cause to arrest you is now complete. DO not do them.

The next phase of any DUI case is chemical testing. There are two kinds of chemical testing. There is roadside chemical testing and in station chemical testing. In the field if an Officer tells you he has what is known as Preliminary Alcohol Screening device and it is an optional test, never take it. Politely decline. However, some of the more resourceful departments have calibrated these devices to be admissible in court, where many have not. It is important to determine if this is the only test you will be offered.

Last, is the in station chemical testing. This is the one that is critical. An ethical police officer is supposed to read you a standard admonition that if you refuse a blood or breath test you WILL lose your license for a year. That means, even if you are not in fact DUI but refuse this test the DMV will simply attempt to suspend your license with no restriction for a year. In contrast, if you do comply you should be eligible for a restricted license in a short amount of time.

This is a double edge sword for the driver. If you refuse you are again depriving the Prosecutor of evidence he needs to convict you. The most challenging DUI cases are known as double refusals. The DA will have to prove DUI without Field Sobriety Tests OR Chemical Testing, which is what they need to prove their case. If you elect not to give a sample in most cases kiss your license goodbye. I don't ever advise doing this, but people do.

Most people end up making their cases very undefendable by just going along with the mostly lying police officer who will make promises of letting you go if you just play ball which is of course, hogwash. Police officers are in fact allowed to lie in order to get incriminating evidence out of suspects.

If you are booked and arrested for DUI, remember you have 10 actual days to stop your license from being suspended for DUI. Make sure to schedule a hearing, or probably more prudently hire an attorney immediately.  This analysis only applies to people who have been drinking. The enforcement of medication or marijuana related DUI, which is on the uptick will be discussed back here in my next few blog posts.