As an Orange County DUI Attorney, people frequently ask me what they should do when if they are stopped by the police after having consumed alcohol. (DUI drugs is a different story) When you have consumed alcohol only, there are some very important things to keep in mind. First of all, ALL field sobriety tests, including following the officers finger with your eyes (Horizontal Gaze Nystagmus test) are completely VOLUNTARY. That’s right! You do not have to take field sobriety tests. Furthermore, if you have consumed any alcohol, you probably should not take them. The “results” of these field sobriety tests are usually typed up by the arresting officer hours after you have been arrested for DUI and the officer must justify arresting you for DUI.
During the
roadside DUI investigation the officer will probably ask you to take a breath
test—called a “preliminary alcohol screening” test or “PAS”. Since you have not
been put under arrest at this point, the breath test is completely voluntary.
Although the law actually requires the officer to tell you that this test is
voluntary, many officers do not. They simple ask you to take it. Again, if you
have been drinking, it is usually NOT a good idea to take the test. Any skilled
DUI Lawyer will tell you that
if you have consumed alcohol recently and some of that alcohol is still in your
stomach, you are in the “absorptive” phase where alcohol is still moving from
your stomach to your bloodstream. During this phase-which can last from 15
minutes to 3 hours depending on whether you have food in your stomach—a breath
test tends to read HIGH. That means that an actual blood-alcohol level of .06%
can give a false reading of 0.08% on a breath
test. Therefore, I do NOT recommend taking the voluntary breath test.
After being
stopped by the police, the officer will ask you how much you have had to drink.
This question should NOT be directly answered. Neither should you EVER lie. A
safe answer would be to tell the officer that you have consumed some alcohol
but that you are not impaired by it. The officer will, no doubt, insist that
you answer the question, but don’t! Stick to the answer that you are “not
impaired”. Do not give a specific number of drinks. If you lie and say that you
have not been drinking, a later breath or blood test will expose you as a liar
and jurors don’t like that.
Orange County DUI lawyers know
the cold, hard truth that if you refuse to take field sobriety tests, don’t a
straight answer about the number of drinks you have consumed, and refuse the
voluntary breath test, you can expect to be arrested for DUI. Once you have
been arrested for DUI, the officer will tell you that you MUST now take a blood
or breath test. In most cases, it is actually better to take the blood test.
There are a couple reasons for this. First of all, you can avoid the problem of
a false high during the absorptive phase. Also, if you choose a breath test, it
can usually be given right away, providing the DA with an alcohol level close
to the time of driving. If you choose a blood
test, the officer must take you to a blood tech. It usually takes an hour
and a half before your blood is actually drawn. Now the DA only has one data
point for an alcohol level and it is not close to the time of driving. Thus,
your DUI Lawyer in Orange
County can argue later that your blood-alcohol level was rising and was
thus much lower than the measured result at the time of driving.
Nobody wants
to be arrested for a DUI. However, being arrested is one thing, being convicted
is an entirely different affair. By refusing field sobriety tests, the
voluntary breath test, and to tell the officer how much you drank, you severely
limit the evidence the DA has to convict you. And if you choose an experienced DUI Attorney in Orange County,
you stand a fighting chance to have the charges reduced to a wet
reckless, dismissed, or get an acquittal at trial. For more information call the Law Offices of EJ Stopyro at (949) 559-5500.
Orange County DUI Attorneys
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