In my criminal defense practice the question I am asked the most often is “what should I do if I am stopped for DUI?” There is no simple answer to this question; not even, “just don’t drink and drive.” I have spoken with and represented individuals who were stopped or even arrested for DUI when their blood alcohol level was 0.0% (of course, the officer was unaware of the 0.0% alcohol level until the test results came back from the State). However, I do have a list of general recommendations for drivers who are stopped, questioned, or arrested for DUI.
Be Nice: The officer is just doing his job – be polite. If you are eventually charged with DUI the officer will have a lot of input as to whether or not your case will be dismissed, reduced, or pushed for the maximum penalty; you don’t want him to remember you as a belligerent drunk.
Don’t Admit It: Being polite is necessary. Hoping the Officer will let you drive home if you tell him you just had one beer and it was 3 or 4 hours ago is fantasy. Never tell the officer that you have been drinking, taking illegal drugs, prescription medications, or even over the counter medication – EVER – you WILL be arrested.
Don’t Consent to a Search: The Constitution guarantees that the Officer can not search your car or person without probable cause. Never agree to a search – EVER. If the officer truly has probable cause to search your car, he will, he just has to get a search warrant or make a valid arrest first.
Never Take a ROADSIDE test: You are not required to take any roadside test, that includes the field sobriety tests (walk a straight line, hold your foot up, follow my pen with your eyes, etc…) and the handheld breath tests (This is a small device the officer can carry with him, the numerical result of this test is not even admissible in Court) These tests can be very confusing and difficult to complete for people who are completely sober. The tests are frequently performed at night, in an unfamiliar location, in improper footwear, and in a very high stress situation. However, please note that the roadside tests are not the same test they ask you take after you are arrested.
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No, it will NOT help: At this point people usually ask “but won’t I be arrested if I refuse to take the roadside tests and refuse the search?” Maybe; but, if the Officer is asking you to take the tests and asking for permission to search your car, he will probably arrest you no matter how well you do on the tests. In short, each test you perform, each thing you admit to, and everything the officer finds when he conducts a search becomes a brick in the case the District Attorney will build against you.
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Ask for Your Own: If you are still arrested, the Officer will then read your rights to you and ask if you will take the “State Test?” This is either a blood test or a breath test (on the Intoxilyzer 9000 – this is a large machine, usually located at the jail, not the hand held device mentioned earlier). The tests requested by the officer after you have been arrested are admissible in Court and if you refuse to take these tests your license can be suspend for a year. However, I only recommend taking one of these tests if: it is your first DUI, you were not involved in an accident, you had 2 drinks or less, and you are at least 21 years old. If you meet these conditions you may consent to the test but you should also ask for an independent blood and breath test at a separate location.
Hire an Attorney. This may sound self serving, but you really do need an attorney. Don’t be too smart to hire a lawyer. Reading a book or online article about DUI does not mean you are ready to represent yourself. You wouldn’t try to take out your gallbladder after reading an article on WebMD so please don’t jeopardize your future by representing yourself for something as serious as a DUI charge. As an example, recently I was waiting to speak with the prosecutor when a gentleman charged with DUI approached and started trying to make a deal with the prosecutor, the man had been sleeping in his car after a night of drinking and when he submitted to the breath test the results were within the margin of error, after this man had made many incriminating statements to the prosecutor he was sent away with an offer to plead guilty to the DUI. The case would have most likely been reduced or dismissed with the assistance of an Attorney.
Hurry. If the officer issues you a “form 1205” or “Notice of Intent to Suspend” and Temporary Driving Permit you only have 30 days to request an administrative hearing or you may lose your license automatically for 1 year.
Just Don’t Drink and Drive. In Georgia you can actually be convicted of DUI even if your blood alcohol is under .08%. If you are under 21 you can be convicted of DUI at just .02%. If you have a commercial drivers license and are operating a commercial vehicle you can be convicted at .04%. Finally, if you commit a traffic violation or are deemed to be a “less safe driver” as a result of alcohol consumption you can be convicted of a DUI Less Safe even with a nominal blood alcohol level.
As a parting note, let me please urge you each to plan ahead if you will be drinking; bring a designated driver, take a cab, or use public transportation. If you really are impaired, the risk of hurting yourself or someone is too high, and if you are not, the cost of a DUI trial is much higher than a cab fare.
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