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DUI/DWI


How To Protect Your Rights During A DUI Traffic Stop

Let's dispense with the obvious. If you're drunk, then don't drive. Don't drive, because you don't want to hurt someone else or yourself. Don't drive, because you don't want to smash up your car or damage someone else's property. And finally, don't drive, because you don't want to get arrested, lose your license, pay huge fines, have your insurance go through the roof and perhaps even lose your job.

That said, let's move to the real world where you do not have to drive drunk to be arrested and found guilty of drunk driving. This is the world that says any person with virtually any amount of alcohol in their system is a candidate for a drunk-driving citation and 100% responsible for any accident that may occur, regardless of who caused the accident. This is not an exaggeration, and you should not assume that because you drink and drive in a responsible manner that you are immune from the "drunk-driver" label and the consequences of a drunk-driving conviction.

If you drink and drive, no matter how conservatively, there is a real possibility that you could be stopped, arrested, and convicted of drunk driving. First, most people do not realize how few drinks it takes to exceed the legal standards of .08 % or .1 % Blood Alcohol Content (BAC). For the average sized person, three or four drinks could easily place them in the "drunk-driver" category. However, based solely on a police officer's claim that you were "impaired," even though your BAC was below the legal threshold, you can be convicted as a drunk driver. The only additional evidence needed would be proof of some measurable amount of alcohol in your system.

Is this fair? No. Is it right? No. Does this improve highway safety? No. In fact, it detracts from highway safety.

How do you avoid being caught up in a DWI nightmare? Well, you could avoid drinking and driving altogether. That means no beer after the ball game, no wine with your meal, no drinking at holiday parties, sticking to soft drinks at wedding receptions, no meeting your friends after work for a drink and socializing. You get the picture. However, if you choose to drink and drive, there are a number of things you can do to lesson the likelihood of being stopped and charged with a drunk-driving violation.

Your Vehicle

Police officers need an excuse to stop a vehicle; there must be some probable violation to justify stopping your vehicle. Frankly, they can always come up with an excuse to stop any vehicle they want to -- a dirty license plate is a violation. But, if given the choice, they will stop the vehicles with the most obvious violations. Speeding, failing to use signals, rolling through a stop sign or driving with burned out lights are common justifications for stopping a motorist. Most of these are controllable items or situations.

For example, once every two or three weeks turn on all the lights on your vehicles(s). Check both headlight beams, taillights, clearance lights, brake lights and turn signals. And don't forget the license plate light (this is a favorite!) Your headlights should be properly aimed, also. Make sure your license plates are properly affixed and readable.

Darkly tinted windows, loud exhaust pipes, broken lenses, unrepaired body damage and cracked windows all serve as the necessary excuse to stop a vehicle.

If the vehicle you are driving is registered in the name of someone who has been convicted of drunk driving it would be wise to not drink and drive in that vehicle. Police officers spend large amounts of time riding around reading license plate numbers into a central computer. When they find a vehicle licensed to someone convicted of drunk driving, especially late at night, they will always find an excuse to pull that car over.

Traffic Laws

Obviously, violating traffic laws is a good way to attract the attention of police officers. At the same time, driving below an already under posted speed limit, signaling a turn a half a mile before turning or not taking your turn at a stop sign will also attract attention. It is virtually impossible to drive more than a mile or two without violating some arcane traffic law. If you have the option of pulling into a parking lot or otherwise avoid having a patrol car follow you for a long distance there will be less likelihood of being stopped for a traffic violation. Making sure to wear your seat belt is one way to convey an aura of "safety."

Driving Time And Place

The chances of being stopped under a variety of pretenses at "bar time" are fairly high. However, the police are also attuned to special events like festivals, sports contests, large wedding receptions, church picnics and company parties. Enforcement may be intensified in these environments. If you are moving with traffic and your vehicle is well maintained and not "standing out" for any reason, you are much more likely not to be stopped for enforcement purposes.

If you have alternative routes that you can take to your destination, particularly in the later evening, that avoid those areas with the largest concentrations of taverns, bars and nightclubs, you will also be avoiding the largest concentration of enforcement activity. Taking the longer, less traveled route may turn out to be a short cut in the long run!

You've Been Stopped, Now What?

Despite your best efforts, a just-burned-out headlight has given a police officer an excuse to stop you. Under other circumstances you might welcome being told about your failed headlight before you left the lighted city streets. But, you have been drinking, not in excess, but drinking never the less. What should you do?

First, always keep documents like your registration and insurance card in a readily accessible location. You do not want to have to fish through your glove box, or worse, to not find these documents when you need them. When the blue lights go on, find a safe place to pull over, always on the right side of the road whenever possible. Next, turn your dome light on and place both your hands on the steering wheel where the police officer can see them. This makes him more comfortable about his safety and conveys a sense of personal control on your part. If the opportunity presents itself, it's best to roll down your window and vent the passenger compartment of accumulated odors prior to actually stopping.

Be courteous, but admit to nothing. If the officer asks if you have been drinking return his question with a question, "would you like to see my license?" or "why do you ask?" Do not admit to drinking so much as one beer. You are under no obligation to give the officer any information beyond that on your drivers license. Your admission to drinking gives the officer "cause" to pursue the matter further. Without that admission he must base his decision on pursuing a DWI arrest on your driving, or mannerisms after the stop. A burned-out headlight is not an indication of impairment and neither is a refusal to chitchat about your night's events.

If he decides to push the issue, he may ask you to step out of your vehicle, which the courts say is permissible. He may ask you to perform certain tests, "just to prove you're capable of driving safely." Do not perform any of these tests. You are not required to perform these tests and there is no penalty for refusal. The ONLY reason these tests are given is to give the officer justification to require you to take a chemical test (breath, blood or urine) to determine your Blood Alcohol Content, BAC. No one ever "passes" one of these roadside sobriety tests, not even the "soberest" of the sober.

Most states do require a driver to submit to a chemical test, or face severe penalties. However, the police officer must have at least "reasonable suspicion" that you are impaired by alcohol to force you to take one of the chemical tests. If you have made no admission to drinking and have performed no tests that he can claim you performed inadequately, his grounds for forcing the testing are limited to your driving and your demeanor. If your drinking has not been excessive, neither your driving nor your demeanor should support reasonable suspicion to demand a chemical BAC test. The only common defense for refusing to take a chemical test is that the officer did not have probable cause to require the test. Again, a burned-out headlight or a refusal to participate in the charade of a roadside sobriety test are not probable causes to require a chemical test.

If the officer persists in forcing you to take a chemical test, and the test results show that he was not justified in forcing you to take this test, you may wish to consider a lawsuit to recover damages. A request for punitive damages should also be initiated in the interest of deterring future enforcement excesses.

If you are not "drunk," it is usually advantageous to you to have the stop recorded on a video camera. Many police cars are equipped with video cameras for just this purpose. However, police officers will sometimes avoid turning the camera on if they think the resulting documentation will detract from the possibility of a conviction. Ask the officer if his car has a video camera and if he has it turned on. If he does not have the camera turned on and you believe it would be advantageous to your defense, ask him to turn it on, that you want the stop recorded. This sends a message that you are not afraid to have your mannerisms and demeanor judged by an impartial judge or jury. It's very difficult for a police officer to claim your "speech was slurred" or that you were "staggering" when you got out of the car when a video film shows a composed articulate defendant being interrogated on an unlit roadside by a uniformed, gun-toting agent of the law.

If you notice that the officer is intent on sticking a flashlight in your face or in your car, it is probably because the flashlight is equipped with an electronic alcohol sensor that detects the presence of alcohol. You do not have to accept this "probing." You can instruct the officer to keep the device away from your face and out of your vehicle. He is free to look into your vehicle, but only from the exterior, unless he requests to search your vehicle. NEVER voluntarily permit a search of your vehicle. To search your car, depending on the jurisdiction, an officer must have probable cause or at least reasonable suspicion, a suspicion he must be able to explain in terms of what he is looking for and why he believes he will find this specific illegal item in your vehicle. There is absolutely no good that can come to you by voluntarily allowing the police to search your vehicle.

Another pre-screening test that falls in and out of favor is called the nystagmus test. By shining a flashlight in the drivers eyes and instructing the driver to scan left and right the officer looks for a jerking eye motion that is sometimes an indication of intoxication. It takes training and experience on the part of the police officer to perform this test. In reality, jerky eye movement or not, the officer can say he performed the test, detected the telltale eye movement, and therefore felt justified in ordering the defendant to take a chemical test. Again, you do not have to take the nystagmus test and should refuse to do so. Just as with the other pre-screening tests, the only reason they are conducted is to justify requiring a chemical test and to build a case against the defendant.

Will your refusals to cooperate with the officer's requests for pre-screening tests irritate the officer? Yes, they probably will. But, keep in mind that if he asked you to take these tests he has already decided to find a way to justify requiring you to take a mandated chemical test. There is no good reason for you to assist him in this effort. Furthermore, if he senses a lawsuit in the making, if he falsely arrests you for drunk driving, he might just decide to find an easier target to fulfill his nightly quota.

Of equal importance, without the additional evidence that the pre-screening tests provide, or pretend to provide, the prosecution will find it very difficult to make a case against you, if your BAC is close to the legal limit, or below.

Despite all evidence to the contrary, if the officer decides a chemical test is justified you typically have three choices of test procedures: Breathalyzer, urine test, or blood test. Frequently, the police will use a Breathalyzer test for the initial screening. However, you are almost always guaranteed the option of taking one of the other two tests, at your request.

The Breathalyzer is the most inaccurate means of measuring your BAC. Without going into great detail, it should be understood that the error factor can be as high as 50 %. If the Breathalyzer generates a reading that confirms your BAC is within legal limits, you should be free to leave (and to begin planning your lawsuit). If the Breathalyzer test results indicate an illegal BAC, you should immediately request one of the two other tests, the most accurate of which is the blood test. If the police refuse to assist you in obtaining a second test, demand an opportunity to obtain a second test, even if it must be at your own expense. Most states have admitted that Breathalyzer tests are highly inaccurate and either through legislation or the courts have been forced to offer more reliable and accurate chemical tests, but only if requested by the defendant.

A legitimate police stop for a suspected drunk-driving incident does not have to rely on trick questions, sensing devices, or gimmicks to justify a chemical test of the driver. The driver's lack of control of the vehicle, his inability to reasonably react to questions and requests, and his physical reactions will be a dead give-away of his impaired condition. Unfortunately, the government, certain commercial interests, and self-serving organizations have institutionalized a negative stereotype of anyone who drinks and drives, no matter how responsibly. By labeling virtually all drivers who drink and drive as "drunk drivers," they have created a situation where responsible and constructive citizens are at risk of suffering huge fines, exorbitant insurance charges, loss of driving licenses, confiscation of personal property, and even incarceration, all for the singular act of violating an arbitrary and unreasonable BAC standard.

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