With years of experience handling countless DUI cases, my encounters in the legal arena have crystallized a consistent approach for individuals faced with a DUI stop. While other lawyers may offer differing opinions, I’ve distilled key insights on what you should do—or refrain from doing—when pulled over for DUI.
Phase One – The Point of Contact
Picture this: You’ve been pulled over, and the police officer is at your window, firing questions about your alcohol consumption or potential drug use. Despite Miranda rights not being applicable at this stage (Berkemer v. McCarty, 468 U.S. 420 (1984)), you’re not obligated to provide self-incriminating information. Maintain respect and kindness, and say something like, “Sir, I understand you’re doing your job, and I appreciate your efforts to keep our roads safe. Respectfully, I prefer not to answer these questions. I’m willing to cooperate with other aspects of your investigation.”
Phase Two – The Field Sobriety Exercises (FSTs)
After attempting to establish a drinking pattern, the officer may instruct you to perform field sobriety exercises and blow into a preliminary alcohol screening or preliminary breath test device (PAS or PBT). Vehicle code section 23612(h) and (i) afford the right to refuse FSTs and PAS (unless on probation or under 21), a right the officer is supposed to disclose but often doesn’t. Politely assert your right by saying, “Sir, respectfully, I appreciate your diligence, but kindly, I choose not to do the FSTs and PAS. Thank you.” Following this, the officer may proceed with an arrest.
Phase Three – The Station House or Hospital (Breath or Blood?)
At the station, you face a choice: another breath test or a blood test. While station house (or hospital) tests are mandatory and refusing them carries administrative penalties, the question arises: breath or blood? If uncertain about your blood alcohol content, opt for breath. If confident you’re under the limit, choose the blood test. The breath test’s reliance on a standardized breath-to-blood partition ratio introduces variability, making the blood test, which directly analyzes blood alcohol content, a more accurate choice. Ideally, at this stage, the officer should possess zero drinking or use pattern evidence, zero FSTs, and zero PBTs. Understanding these phases can significantly impact the outcome of your DUI case.