3 Pieces of Evidence You Should NOT Give to The Police When You Are Pulled Over for Suspicion of a DUI

I received an email via my contact page from Brandon Leuangpaseuth, who wanted to share some tips to get through a DUI checkpoint. - Tom.

Getting pulled over for drinking and driving can be a stressful situation. Most of the time, you will be so nervous or caught up in the situation, you will oftentimes unknowingly give the police officer evidence for building a case against you.

Drinking and driving is against the law and should be avoided at all costs. The best policy to avoid a drunk driving citation is to drive with no alcohol in your system. However, if you find yourself in a situation where you have been pulled over and you are uncertain if you are above the legal drinking limit, do yourself a favor and do not help the officer by giving them evidence.

Here are 3 things you should avoid giving the police officer after you have been pulled over with the suspicion of drunk driving.

1. Answering Questions that Will Be Used To Build a Case Against You

Most of the time, when a police officer pulls you over late at night, they will ask you a series of seemingly innocuous preliminary questions such as:

Where are you coming from?... Have you had anything to drink tonight?... How much did you
have to drink tonight?... When did you start drinking?... When did you stop drinking?


First off, it is imperative that you are polite and courteous. Period. Giving a police officer attitude or being disrespectful will do nothing for you. It will most likely make matters worse so be friendly and respectful.

Only after you are asked by the police officer then you should provide your license, proof of insurance and registration. You are only required to present your license, your proof of insurance, and your car’s registration card at any time when a police officer requests you to do so and you are not obligated to answer any of their following questions.

When an officer asks you any of those questions above, you can politely and respectfully decline. Again, always be kind and courteous. A simple statement like this would suffice:

“Due respect, officer, but I do not wish and am not required to answer any questions. Am I free to go?”

If you were to answer any of those questions, the police will be recording all your answers and anything you say can and will be used against you in your police case. The police report will contain all the information you gave to the officer so it is best that you minimize that information by using your right to remain silent.

2. Refuse the Roadside Field Sobriety Tests

Most of the time, if the officer has a suspicion that you were drinking and driving, they will ask you to step out of your car.

Comply with the officer's request. The officer will then instruct you to do a series of roadside field sobriety tests.

Most individuals do not know that these roadside tests are
completely voluntary.

Let me spell it out for you. An officer is asking you to do tests to find evidence for your alleged crime. The last thing on earth that you want to do is give them any evidence to support your conviction. If you partake in the roadside field sobriety tests, these subjective tests will be used in the police report as evidence against your demise. Just say, “no, officer I won’t”.

Some people will think:
Oh, I feel completely fine. I will just act in accordance with the police’s orders to get this officer off of my back.

Again, these tests are subjective and any misstep or mistake will be used as evidence for proving your guilt and conviction. Even if you feel completely fine, chances are this will probably be the first time you will ever be doing these motions and you will most likely mess up. Don’t believe me? Go take a beginners dance class or some golf courses. You will see mimicking movements after watching someone do so is a difficult task if it is your first time doing so.

If the officer continues to insist that you take the tests, tell the officer you would like to take the test, but you would like to ask your
DUI lawyer first if it is okay. You can then pretend to talk with a lawyer. Afterward, tell the police officer that your attorney told you to not take the roadside field sobriety test because they are voluntary as well as they are designed for a person to fail.

In summary, refuse the police officers request for the roadside field sobriety test. The officer cannot use your results on the field sobriety tests if you refuse it. The officer will bring you into custody, but you would have probably been arrested anyway.

3. Decline the Roadside Breathalyzer Test

One of the last pieces of evidence you can give to the officer is the roadside breathalyzer test. It should be noted, that there is an immense difference between refusing a roadside breathalyzer test and refusing a breathalyzer test at the police station.

If you do not consent to a roadside breathalyzer test, the officer will believe that you are intoxicated and are a danger to yourself and the general public. By the implied consent laws, this will allow them to arrest you because you refused to take the tests.

This is okay. Oftentimes, these roadside breathalyzer tests are
susceptible to errors and should be avoided at all costs. Why put yourself in a situation where the results to an unreliable test are used to legally convict you?

When you are at the station, if you refuse the tests then, you are subject to getting your license suspended by the DMV for 6 months to a year depending on what state you are in. Although your refusal of a blood-alcohol concentration test may be seen in some states as an admission of committing the crime (that can be used against you in a trial), in all the states, if you refuse to be tested, the penalties will be far more harsher if you are convicted if you submitted the tests in the first place.

A quick tip is that when you are asked to take a blood-alcohol concentration test, ask for a blood test instead of a breathalyzer test in the station. The reasoning behind it is that blood tests take some time to analyze and receive the results. The police officer that has arrested you has to write their report and build their case with the evidence they have. Hopefully, you have provided them with no evidence such as the roadside breathalyzer test, answering their questions, or field sobriety tests.

Also, when building your defense, DUI blood tests are more prone to a variety of errors that can be disputed in court. These mistakes can produce an unreliable blood alcohol concentration result and can be fought in court.

Know Your Rights and Be Safe On the Road

Here are my tips for not giving a police officer 3 crucial pieces of evidence to convict you of an alleged DUI. Once more, the best way to avoid a drunk driving conviction is to drive completely sober! Know your rights and be safe on the road.

Guest Post: Getting Home Safely

Dale Vernor reached out to me via my contact page, and asked to share his thoughts on alternatives to driving drunk. He emphasized that due to the time of year, this information needs to be out there as much as possible, and I agreed. Dale is a writer and researcher in the fields of mental health and substance abuse. He enjoys discussions on politics. - Tom

It’s 2 a.m. The bartender has announced last call and you know you have to get home, but you’ve been drinking pretty steadily all night. Or, your friend’s party could be ending and you’re feeling a little buzzed.

In either case, driving home isn’t worth it. If you try driving home, you could get into an accident that hurts you or others or does serious property damage. Even if you’re lucky enough to avoid an accident, you could be charged
with a DUI or face other legal trouble.

December holidays and New Year’s celebrations can be particularly dangerous. Many people drink during these celebrations and might get behind the wheel when its dark, the weather can be bad, and roads can be icy. In 2017, the U.S. Department of Transportation noted, “Nationally, over the past five years, an
average of 300 people died in drunk driving crashes the week between Christmas and New Year.”

So what can you do during the holiday season or any other time when you are out drinking to avoid getting a DUI?

  • Call a friend or family member. You would be surprised how many friends and family members would hop out of bed during a dead sleep to come and pick you up. Sure, it might feel a little embarrassing at first. Sure, you might feel guilty for waking them up late at night. But, a little initial embarrassment and guilt is far better than the pain and trouble you could experience if you cause a deadly accident or receive a DUI.

  • Assign a Designated Driver. If you have a group of friends that go out a lot for drinks, rotating the DD is the most fair way to go about this. Taking the time to call a friend, call a cab service or ride sharing company, or getting a designated driver could save you court costs, jail time or even court ordered alcohol rehab.

  • Call a taxi or ride sharing service. Yes, this cost money but compared to court costs a taxi or an Uber is way less expensive. Yes, it is inconvenient to have to go back and get your car the next day, but driving drunk and risking a DUI and staying the night in jail, if not longer is far more inconvenient than getting your car the next day.

You’re not the first person who has had too much to drink and needs a ride home. You won’t be the last. Drunk driving is not worth the risk, the consequences of accidents and DUIs are long-term. Don’t let feelings of bothering someone for a ride, or the cost of a taxi deter you from getting home safe.


The First DUI for Electric Scooters

So often when people try to contact me, they give me some questions like "Can you get a DUI on a bike" (yes, but general consensus if you have to be a real asshole to a cop to get one), to "Can you get a DUI on a horse?" (No), and more.

I haven't been asked if you can get a DUI on one of those electric scooters (Bird, Lime, etc.) that have been buzzing all around Santa Monica and other places, but now we have
the first conviction of somebody for a DUI on a scooter.

"
City Atty. Mike Feuer said his office had secured a misdemeanor conviction against Nicholas Kauffroath, 28, who was riding a Bird scooter on a sidewalk in West L.A. when he knocked a pedestrian to the ground and scooted away to a nearby apartment building without stopping to render aid."

Now, like I mentioned with the bicycle… you have to be kind of asking for it. So far they haven't been doing checkpoints for scooters besides issuing tickets for people riding them in restricted areas. Hitting somebody and zipping off… that's asking for it. That's a hit-and-run. That's more being buzzed on a scooter.

"
Kauffroath, who did not return a request for comment, was sentenced to three years of probation and ordered to pay a $550 fine, Feuer said. He was also ordered to pay restitution to the victim, complete a three-month DUI program, and stay off scooters while drinking."

What's interesting is that while these scooters require you to have a drivers license… it doesn't look like Kauffroath will have a suspension or an interlock placed on his regular vehicle. He's getting a standard DUI class for a first offender, a higher than normal fine, and a normal probation. A big penalty for a stupid mistake.

So don't drink and drive and ride a Bird or Lime around. You won't catch me on one of those things, they go too fast and drivers are bad enough when you're surrounded by 2000 pounds of metal.

Guest Post: 4 Tips to Survive A DUI Checkpoint

I received an email via my contact page from Brandon Leuangpaseuth, who wanted to share some tips to get through a DUI checkpoint. - Tom.

There has been a lot of controversy with the legality of checkpoints because you are protected by the 4th amendment from unreasonable searches and seizures. However, the Supreme Court evaluated the entire circumstance of DUI checkpoints. They determined that the state's interest in safe roads and the success rate of finding impaired drivers weighed against the average
delay of less than 30 seconds per driver meant that the search and seizure were not unreasonable. The U.S. Supreme court upheld the legality of DUI checkpoints.

The best way to survive a checkpoint is to be completely sober. However, if you had a few drinks and you encounter a police DUI checkpoint, here are 4 tips to surviving the checkpoint.

1. Use Your Right To Remain Silent

The majority of checkpoint encounters would start with the police officer asking you a series of questions to determine if you have been drinking. What a lot of people don’t realize is that you are not obligated to answer any of these questions. You are protected by the 5th amendment and have the right to remain silent and not have to contribute to your own potential demise. If an
officer asks you if you had any drinks tonight, you can just say “I respectfully decline to answer these questions, and I would like to talk to my lawyer”.

Anything you say, can and will be used against you in a case if you are arrested. If you answered that you had a few drinks, the officer has some suspicion that you are potentially breaking the law. No matter how nice the officer may seem, they are doing their job - trying to get evidence to support a case against you.

2. Refuse the Field Sobriety Test and the Breathalyzer Test

Most people think that if they refuse the field sobriety test or the breathalyzer test, they will get their license suspended. This is a common misconception. The only time you will get your license suspended is if after you are arrested and you refuse to take a breathalyzer or blood test. If you decline the field sobriety test or the breathalyzer test before the officer has any probable cause to arrest you, you will be okay.

The officer is collecting evidence to determine if they have probable cause that you have committed a crime. Failed completion of field sobriety tests is used, in the officers eyes, as evidence that a crime has been committed. The field sobriety test is a difficult test to take even if you are completely sober. In a field sobriety test, an officer will administer three tests to determine if you are intoxicated: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand test. It is in your best interest to not provide any excess evidence to allegations of you committing a crime.

3. Do Not Get Out of Your Car (Unless There Are Signs of Alcohol And You Have To)

Officers have no right to force you out of your car unless they have reason to believe that you are drunk. However, slurred words, an open container or the aroma of alcohol can be enough probable cause to make a case for a DUI. Going this route, the officer has to establish exactly what they are being arrested for a DUI.

Oftentimes, the police officer will ask you to step outside and you should always respectfully decline. Do not give the officer probable cause to arrest you.

4. Don’t drive through!

You do not have to drive through a DUI checkpoint. You can turn around and simply not drive through the DUI checkpoint. There are no laws forcing you to drive through a DUI checkpoint.

As long as you do not commit a crime i.e. an illegal turn or any other traffic violation, the officer does not have enough probable cause to pull you over and detain you. Oftentimes, DUI checkpoints can be a long line and you are not obligated to wait in the line.

If you have been out and drinking, and you do not want to deal with the hassle of a DUI checkpoint, just turn around legally and you will be fine.


Should I Buy a Portable Breath Testing Device for Personal Use

Got an email from Len, who wanted to chime in on the breathalyzer issue. - Tom.

If a person has consumed alcohol away from home, and he or she is concerned about being over the legal blood alcohol limit, a personal breath testing device (PBT) might control their decision about driving home. Such a device can help avoid an accident, injuries, a night in jail or all three of them. PBTs are used by many police departments across the country for purposes of establishing probable cause to take a driver down to the station for certified breath testing. They're also available to the general public to help keep that from happening. For a charge, some bars even have their own stationary breath testing machines for use by their customers.

You Get What You Pay For
Any person who frequently consumes alcoholic beverages and drives might want to have a portable breath testing device. PBTs are hand-held devices that a person can use to measure their blood alcohol concentration anywhere that they might be. Some models even plug into smartphones with an app that performs all of the computations. They might be told right away if it's safe to get behind the wheel of a motor vehicle to drive home, or whether they should call Uber, Lyft or a taxi service. What comes to issue is the consistency and reliability of these devices. There can be a differential of plus or minus 20 percent from one blow to another from the same person, especially on the least expensive models. That's a big variable when a determination must be made as to whether a person should even be thinking about driving.

PBT Reliability Issues
There's a reason why PBT testing isn't admissible for purposes of proving guilt or innocence in a DUI trial. Their results simply aren't reliable. Some units need to be periodically returned to the manufacturer for recalibration. Others simply deteriorate over time. Even the most expensive PBTs carry a disclaimer on the back of their packaging. Others are marked as being for personal or home use only. Remember the reason for that: PBT results are generally unreliable. If you are considering a PBT see our review of this smartphone Breathalyzer. If you're going to get a PBT this is the one to buy. We have done a thorough review of it here.

Trust Your Gut
It's more likely than not that if you have any amount of an alcoholic beverage on your breath, and you're the subject of a traffic stop, you're going to end up at the police station with a blow or no blow dilemma. Your PBT results are irrelevant. The decision on whether to blow is up to you, but remember, if you refuse that breath testing, and you're found guilty of DUI, the penalties are going to be even more severe.
Contact a lawyer
It is almost always worth hiring a DUI lawyer after a DUI charge. You'll have questions, they'll advise you of your legal options, and you can decide on what direction you wish to take.


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