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5 Tips To Help Avoid A Dui Conviction
By Lawrence Taylor, Fri Dec 9th
If you are ever arrested for drunk driving (also called for"driving under the influence" or DWI for "driving whileintoxicated"), your experience will begin with an officerstopping you because of some questionable driving pattern, orpossibly because you encountered a "sobriety checkpoint" oryou were involved in an accident. The officer will approach yourcar and ask some questions. You will then be asked to perform"field sobriety tests". He may also ask you to breath into ahandheld device, technically called a PBT or "preliminary breathtest". You will then be arrested. On the way to the policestation, you will be asked to submit to a breath or blood test-- and told that if you don't, your driver's license will besuspended. What should you do and say during all of this to minimize therisk of a criminal conviction and a license suspension? 1. Politely decline to answer any questions without an attorneypresent. It is a cardinal rule in legal circles that onlyincriminating statements are included in police reports andlater testified to in court; statements pointing to innocenceare invariably ignored, forgotten or misinterpreted. Bluntlyput, whatever you say will almost never help you and can onlyhurt you.
2. Decline to take any so-called field sobriety tests. These aretheoretically intended to determine impairment, but in fact aredesigned for failure. In most cases, the officer has alreadymade the decision to arrest and is simply going through themotions and gathering further evidence to bolster his case (heis the one who decides whether you "pass" or "fail"). In almostall states, you are not required to submit to this "testing".It's unlikely that taking it will change the officer's decisionto arrest. 3. Decline to take a "PBT" (preliminary breath test). Thesehandheld units are carried by officers in the field to helpdecide whether to arrest or not and are notoriously inaccurate.In most states, drivers are not required to submit to thesetests (in some they are required if you are under 21). Althoughmost states admit the results of these tests into evidence onlyto show the presence of alcohol, some permit them to prove theactual blood-alcohol level. 4. Do you choose blood, breath -- or refuse to take any chemicaltest? This is a case-by-case decision, and involves a number ofconsiderations. First, although blood tests are subject to manypossible
errors, they are generally more accurate than so-called"breathalyzers"; if you feel your blood-alcohol level is below.08%, then you might want to choose the blood test. Secondly,whether to submit to testing at all requires some knowledge ofyour state's laws -- specifically, the consequences of refusing.If the increased criminal penalty and license suspension do notoutweigh the possible benefit of depriving the prosecution ofblood-alcohol evidence, then you may wish to refuse. Bear inmind that the prosecution will charge you with two offenses, DUIand driving with over .08% blood-alcohol; without a blood orbreath test, he cannot prove the .08% charge, and there will beno chemical evidence to corroborate the officer's testimony. Youshould also realize that in many states chemical evidence of avery high blood-alcohol level, say over .15%, can trigger moresevere penalties.5. In almost all states, your driver's license will beimmediately suspended if either (1) the chemical tests resultsare .08% or higher, or (2) you refuse to submit to testing. Youhave a right to a hearing to contest this administrativesuspension, and there are many possible defenses, many of themtechnical in nature. This hearing is usually separate from thecriminal proceedings, and involve different procedures andissues than in court; it is not uncommon to lose the criminalcase but win the suspension hearing. However, as most motorvehicle departments do not really want the time and expense ofproviding these hearings, they tend to provide notice of theright buried in fine print given to arrestees. The criticalinformation is the requirement that an actual demand for thehearing must be made by the arrestee -- usually within tencalendar days. If you do not contact the DMV within ten days,you lose all rights to a hearing -- no matter how good a defenseyou may have. Tip #5: Get an attorney right away, or make thecall yourself -- and make sure you can later prove you made thecall within the ten day window! Lawrence Taylor is a former prosecutor, Fulbright professor oflaw, and author of the standard legal textbook, "Drunk DrivingDefense, 5th Edition". He heads an 8-attorney DUI defense law firm inLos Angeles.
About the author:Lawrence Taylor is a former prosecutor, Fulbright professor oflaw, and author of the standard legal textbook, "Drunk DrivingDefense, 5th Edition". He heads an 8-attorney Los Angeles
defenselaw firm.
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