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WHAT TO DO IF YOU GET A DUI?

December 4, 2010 Leave a comment

Stopped For DUI – You’re Under Investigation, Now What Do You Do?

One of the most common questions that any criminal defense attorney is asked by clients, acquaintances and family is “What should I do if I am pulled over for DUI?” Well, in the first place, driving under the influence of alcohol or drugs to the extent that one’s ability is impaired is an extremely serious matter. Everyone should avoid driving after they have drank alcohol or at the very least stay aware of the number of drinks you have had and don’t drive if you feel impaired or believe that you are even near the Florida unlawful blood alcohol level of .08%.

If you are unfortunate enough to see the blue lights of a police car in your rear view mirror, you should keep in mind that you are required by Florida law to pull your vehicle over in a safe manner as soon as you are reasonably able. Remember that police officers have a hazardous job and quite often the people they encounter are violent, nasty or dangerous. The officer will be alert to any indication that you are going to either try to harm him or her or try to run. So you can help to avoid a nasty or even life-threatening confrontation with the officer by following a few simple steps at the very beginning. First, once you have safely pulled your car off of the road, turn off your car’s engine and roll down your driver’s side window. You should stay in your vehicle unless asked to get out by the officer, since jumping out and heading back to the police car could be seen as a hostile and threatening gesture by a paranoid officer. While you are waiting for the officer to walk up to your window, keep your hands visible to the officer – on the steering wheel is best. This is a good time to think about where your driver’s license, vehicle registration and proof of insurance are located – the officer will ask for them and you are required by law to provide them. Fumbling or forgetting where they are will be used by the police and prosecution as evidence of impairment if there is a DUI charge.

Be Polite, Don’t Say Too Much, and Try Not To Breathe On The Cop

Although you are required to give the police officer your name, drivers’ license, vehicle registration and proof of insurance card, unless you have been in an accident you are not required to tell the officer any more information. By law you cannot provide false information to the officer, but you are not required to tell him or her if you have been coming from a bar, or drinking, or how much and what type of alcohol you may have had. However, in some cases it may be desirable to answer the officer’s questions.

Keep in mind that the officer may only be stopping you to give you warning about a burned-out tail light, or for some other traffic infraction. If you have not been drinking alcohol or taking prescription or illegal drugs (or you do not any reason to suspect that you are being investigated for any other crime) you generally will be better off answering the officer’s questions in a friendly, respectful manner. However, if it becomes apparent that the officer believes that they are investigation a drunk-driving case, or any other criminal activity, you are best advised to stop answering the questions.  Sometimes even seemingly innocent comments that people make to the police that will be turned around for some advantage by the prosecutor later, if charges are filed.  There is no magic way to refuse to answer questions from a police officer – simply saying “I don’t want to talk” will do the trick.  Asking for an attorney before you wish to talk works in most situations, but the courts have ruled that DUI investigations at the road side, prior to actually being handcuffed and officially arrested do not rise to the legal levels that require access to an attorney.   A very good way to decline to answer a police officer’s questions during a DUI investigation when you have not consumed any alcohol or drugs, or very little, would be to say something like: “I do not want to answer any more questions but I want to take a breath test and a blood test as soon as I can”.

Smile! You’re On Candid Camera!

Everything you say or do will be noted by the officer and could be used as evidence against you in court. Remember at all times that you are probably being video taped and audio recorded by the police – whether you are standing outside your car, sitting in the back of the police car, or at the police station. Many police cars now have video cameras behind the front grill or on the dashboard. These cameras are activated by the officer and can be turned on or off at the officer’s desire.

But I Didn’t Have a Chance to Study For a Test!

If the officer continues investigating you for a DUI, you will be better off declining to perform any physical field sobriety tests and politely ask for both breath and blood tests. Field sobriety tests (FST’s) consist of an eye exam followed by two or three physical tasks. The eye exam given by police officers during a DUI investigation is called the Horizontal Gaze Nystagmus test (HGN) in which the officer will ask you to hold your head still while your eyes follow a light. The officer is looking for any quivering of your eyes as you look from side to side. Although alcohol can cause a person’s eyes to quiver more than normal, there are other causes of this quivering, or nystagmus which may be misinterpreted by the officer. At any rate, the results are not recorded or objective and the judge and jury will only have the officer’s word as to what your eyes did during that test. The physical tests consist of the  Walk and Turn and One Leg Stand.  Sometimes a police officer will also use the Finger to Nose test.  These tests are designed as “divided attention” tests and meant to distract the person taking them.  They can be difficult to do, especially under the stress of a police investigation by the side of a busy highway and often at night. The instructions for each test are detailed and officers often have learned to say them in a manner that can be somewhat confusing in order to make the DUI suspect appear “impaired”. You should politely decline to take any of the field sobriety tests. The only penalty for not taking field sobriety tests is that the judge and jury will be told that you refused them, as if that in itself is an indication of your guilty conscience. However, it is easy to explain to a jury or the judge that you are not particularly coordinated and that you didn’t believe you could perform on the side of the road at that time. It is important not to say something like “I couldn’t do those tests even if I was sober” when declining the FST’s! Instead, if you have not drank any alcohol or taken any controlled drugs, prescription or otherwise, you should decline the FST’s by asking for both breath and blood tests. Although if the officer for some reason believes that you are impaired from alcohol or drugs at this point, you may be arrested and taken to the police station for a breath test, a correct result by the Intoxilyzer breath testing machine will further prove your innocence. By Florida law, the police should give you the opportunity to arrange for and obtain blood testing at your own expense at a local medical facility. The results of that test will be invaluable as independent evidence that you have not been drinking should the breath test machine make an error and you are arrested for DUI.  If your breath test results do show that you have not had any alcohol, expect the police officer to request that you provide a urine sample.  By Florida law you are required to provide the sample, the same as taking a breath test, if the officer has probable cause to believe you are driving under the influence to extent that your normal faculties are impaired.  The urine sample will be sent to a crime lab for analysis for drugs.

Got Stopped Going Home From The Bar?

If you have been drinking, but you are sure that you are not over the legal limit of .08% BAL or impaired from alcohol or drugs, you do not have to answer any questions about your drinking. You should decline politely to take any field sobriety tests, but politely ask for both breath and blood tests. This is a somewhat risky tactic, since it depends upon the accuracy of your prediction of how much your alcohol intake has affected your blood alcohol level. And, as we all know, a few drinks can effect anyone’s ability to make important judgments. For that reason, this advise should only be used when you are absolutely certain that your blood alcohol level is well below the legal limit in Florida of .08% and that you are not impaired from the alcohol. If you do not know how to make a calculation of the effect various amounts of alcohol over periods of time have on your blood alcohol level, you can read more on this subject by searching for “Widmark’s Formula” on the internet. There are several very rough guidelines to predict your blood alcohol level for various amounts you have consumed, however they are rough estimates whose accuracy depends upon each person’s body weight, fat content and other physical and medical factors influencing alcohol metabolism.

If you have been drinking or taking drugs and you believe you are impaired from them, or that your blood alcohol level is over the legal limit of .08%, you are very likely in trouble by the point you need this advice. And since you have already disregarded the very first piece of advice given at the beginning of this article, you probably won’t be able to remember or correctly follow any advice, much less legal advice. However, by this time, as you stare at the flashing blue lights and the handcuffs hanging from the police officer’s belt, you are finally beginning to realize that DUI is a serious and potentially deadly offense and you are regretting your lapse of judgment. In order to minimize the impact that your lapse of judgment may have on your life, you should politely decline to answer any questions the officer asks. You should decline to take any tests – the eye test (Horizontal Gaze Nystagmus, or HGN), the field sobriety tests and the breath test. Keep in mind that refusing the breath test will result in increased suspension periods of your driver’s license as well as potentially a separate criminal charge of Refusal. However, providing the breath test will likely just make it easier for the State Attorney to prove your DUI case, and if your blood alcohol level is over .15%, will result in higher fines and other sentencing provisions upon a conviction. You should expect to be arrested – be cooperative and polite at all times.

What’s going to happen if I get arrested?

Once you are booked into the jail, you will be held there for at least eight (8) hours, or until your blood alcohol level is less than .05% and you are no longer impaired. Therefore, it is important not to raise a fuss, yell, scream, argue or otherwise appear impaired from alcohol if you want to go home. You may be allowed to leave at that time without having to post a bond, called a Release on Recognizance (ROR), if you live locally and are employed. If you are not released ROR, a DUI bond in Pinellas or Pasco Counties generally will range from $150 to $1,000, depending upon the number of prior DUI’s and whether or not there was an accident with injury or property damage involved. You may either post the full amount of the bond yourself (keep in mind that any future court fines, costs and restitution will be deducted from your cash bond before the rest is released to you at the end of your case), or you can call one of the many bail bondsmen in the Tampa Bay area to arrange for them to post the bond for you. The bail bondsmen generally charge 10 to 15% of the bond amount for this service, and sometimes may require that you sign an automobile or home over to them as collateral. Call several bondsmen and get quotes from them before deciding which to hire if the first one sounds too expensive.

After you have been released from jail, you need to find and hire an experienced DUI attorney. You can find my advice on how to go about locating, interviewing and hiring the best attorney for you in my blog, the Florida Law Blog, at https://gpottslaw.wordpress.com/.

Garry L. Potts is a former 15 year prosecutor and former insurance defense trial lawyer. Garry L. Potts handles legal matters in the following practice areas: Criminal Law, Civil Practice, Driving While Intoxicated, Breath test Refusals, Drivers License Revocations or Suspensions, Assault and Battery, Felonies, Misdemeanors, Sealing & Expungement, Traffic Violations, Theft, Personal Injury, Automobile Accidents, Wrongful Death, Family Law, Child Custody & Support, Divorces, Wills, Trusts and Probate. With over 22 years of experience and more than 100 jury trials, Garry Potts is one of the most experienced attorneys in the Tampa Bay area.

The Law Office of Garry L. Potts
13575 58th Street North, Suite 126, Clearwater, Florida 33760
Telephone: 727-538-4166

Web site: www.GPottsLaw.com

Web site: Clearwater DUI Attorney