Photo by Tim Mossholder on Unsplash
The hope is that you never have to experience getting a DUI. Getting arrested for Driving Under the Influence or DWI (Driving while intoxicated) is a pricey activity. Studies show that your first DUI can cost you upwards of $10,000. That is, if you did not hurt anyone in a crash, of course. Most citizens would be careful not to drink before driving, but then there are others that believe they will never get caught. Even if they do get pulled over, they have a strategy given to them by Uncle Bob, Youtube, or friends who have told them “There is no way the officer can arrest you after that. It’s guaranteed!! Just a fair warning: If someone tells you that a plan is guaranteed to work and there is no way anything can go wrong, remember the Most Unsinkable Ship In The World, The Titanic. You are probably being fed myths of what goes on in a DUI investigation. I will attempt to clear us these here for you.
Also note that the laws that are the basis for this information are ones enacted in Virginia. Laws may be slightly different in your state.
Myth #1 If you are intoxicated with alcohol and you get pulled over, just step outside of the vehicle and guzzle a beer or bottle of liquor in front of the police officer, and the police will not be able to determine you Blood Alcohol Content before you were stopped, so they will be forced to let you go or take you in for public intoxication. WARNING: Jumping out of a vehicle after being pulled over may be hazardous to your health.
I have actually seen videos of people grabbing a beer or a liquor bottle and drink in front of the officer this online, and I think they are hilarious. In my 20 year career that has never happened to me. Those braniacs on the videos think they got a solid plan But don’t be fooled. Whereas you BAC results will definitely be higher after imbibing, the officer still can make his case.
Keep in mind, the officer has all the probable cause of your erratic driving, your immediate condition (it takes time for alcohol to metabolize in your system) as you are walking, speaking and behaving and don’t forget bloodshot eyes and a strong odor of an alcoholic beverage about your person. The police officer does not need your BAC results to secure a conviction in your case. I have had many who refused to submit to an intoxilizer test. There was never a time the offender got off due to this.
So you think you have gotten the better of the officer. You may even be smart enough to realize you will be convicted anyway. What you did at the stop was damage control. Some states have harsher penalties for higher BAC’s. So you think the results that were taken from you will be thrown out because they are inaccurate. Think again. In a case like this, the prosecutor will surely subpoena a breath alcohol concentration specialist from the state lab who can accurately place your BAC results within 1-2 points before you drank based on the amount of alcohol consumed, the concentration of alcohol in the bottle, and the time it took from the stop to the time you submitted to the intoxilyzer. So the only thing you accomplished is that your hangover in the morning will probably make you feel worse.
Myth #2 If you’re close to home when the blue lights come on behind you, keep going until you pull into your driveway. The police need a warrant to come up on your property and investigate for a DUI. They probably won’t bother. You would be safe.
First understand this is not baseball or hide and seek. If you think that by pulling up into your driveway you have successfully eluded the police and have avoided getting a DUI by this stunt, well, at least one thing is positive: since your vehicle is home, they may not tow it. But that’s the only thing.
This is what will happen: The police WILL come up on your property and conduct the DUI investigation right in front of your Azalea bushes. The siren or the argument with police will probably wake up the neighbors and you will provide them with midnight entertainment. If you are drunk, they will arrest you. Nice memories made right in your driveway.
You may think that if you hurry and pull up into the driveway, you could get out and run inside the house, slam the door and lock it and they won’t be able to proceed. Oh boy, are you wrong. There is this legal terminology among police and legal circles called “hot pursuit”. The law allows the police, as long as they are at that time in pursuit of a motorist or pedestrian who thinks it’s wise to secure themselves in their dwelling, to kick in the door, tackle you and forthwith secure you in cuffs and arrest you. As an added bonus, if you left your illegal narcotic paraphernalia or illegal weapons on the coffee table, that would be just what the police needs to secure your residence (that’s right, which means a protective sweep waking up your family and have them seated in the living room) so that they can get a search warrant for the rest of the house. Since narcotics can be any size, that means everything will be searched, including behind the electrical socket plates, in your vents, etc., anywhere illegal substances and weapons can be found. That includes all occupants of the dwelling. And you and possibly your family will be charged with what they find. I’m not bluffing.
Myth #3 If you refuse to perform or submit yourself to the Standard Field Sobriety Tests, the police will not have enough evidence on you to charge you.
This is where, in my opinion, motorists who had been drinking shoot themselves in the foot. And in case you think I have an evil agenda in discouraging your refusals, please understand, I am an old retired cop who has no dog in this fight. Just hear me out.
The first thing you must realize is that the officer really does not need any help from you in securing a charge against you for DUI or DWI. You had already grabbed his attention to your vehicle due to your erratic driving (swerving in the lane, going over lane indicator lines, frequent stomping on the brakes for no reason, sudden changes in your speed, etc.). When he gets up to your driver window he feels like he just entered a brewery with the strong odor of an alcoholic drink about your person, blood shot eyes, slurred speech, fumbling with your license and registration, and just the slowness of your reactions. Even if you refuse all tests, you will nonetheless be exiting your vehicle, either willingly or by force. When you walk with the officer, you perhaps will be stumbling and grabbing things for balance. At that time, you have given the officer way more probable cause than necessary to place you under arrest for a DUI. If you refuse then, you will be chauffeured by one of your city or county’s finest wearing the nifty bracelets and being put up into deluxe accommodations for the night. And what’s more, with his body cam going, it will give the judge and the people in the galley some entertainment at your expense. Hey, anyone bring popcorn?
So why do police officers have you perform all those extra tests? It is because unless you refuse to do them, they have to by law. You now have a chance to prove the officer wrong. If there is any question that you are over the legal limit (now .08, but legislation in many states has or will change it to .06 soon), now is your time to shine. If you feel you might be under the legal limit, this is the time to either prove it or at least put a reasonable doubt in an officer’s mind concerning your intoxication. In case you are not aware of what the Standard Field Sobriety Tests are, there are basically three (four if you counting the Preliminary Breath Test):
Horizontal Gaze Nystagmus–this is the test where an officer has you stand up straight with your feet together. He will then have you follow a pen or a finger with your eyes as he moves in from side to side without moving your head. What the officer is looking for is an involuntary jerking of the eye back and forth. It becomes more pronounced the more alcohol you have in your system. They will also check for vertical nystagmus by raising the pen or finger up and down if they suspect the substance of your intoxication is narcotics.
Walk and Turn–There are many components in this test that would give indicators of your intoxication, if in fact you are intoxicated. The officer will have you walk nine steps in a straight line heel to toe looking at your feet and counting out loud. After the ninth step you will then pivot on the back foot and do the same thing walking back to where you started.
One Leg Stand–You will lift one leg off the ground straight in front of you without bending the knee and balancing yourself on the other leg and start counting “one thousand one, one thousand two…” and so on until the officer tells you to stop. Generally this will go on for thirty seconds or until the suspected drunk driver quits.
Preliminary Breath Test–This is conducted using a field breathalyzer to get an idea on the level of intoxication the motorist is experiencing now. The difference between this test and the previous three is that the results of the breathalyzer cannot be used as evidence in court unless your defense attorney wants it brought into evidence. When the officer testifies to the events in your case, he can only say that the Preliminary Breath Test was offered. If you are, in fact, under the legal limit, this is a risk free way of finding out. But do not get this confused with the intoxilyzer test down at headquarters. You have already given consent to take that test when you signed papers to get your license (oh, you didn’t see that did you?).
I did not reveal all of the indicators in the above explained tests. I figured if you had problems performing these tests due to your drunken state, you will not be able to control the indicators I have told you, much less all the others.
Let me tell you of a situation that occurred with a fellow officer of someone he had pulled over under suspicion that he was DUI. So, this officer pulls this guy over in the southern part of the city close to the North Carolina border. I’m heading his way (our city is over 400 square miles, so it’s going to take a minute) and understand the officer had already started the testing. The time was around nine on a Sunday morning, not a usual time for catching DUI’s but not unheard of (as you will find in the next myth concerning intoxication and sleep). So when I get there, he’s done with the testing but he appears confused. He told me that when he first observed the vehicle, it was all over the roadway. When he did his tests, he couldn’t keep his balance and he had slurred speech. However, he had little or no horizontal gaze nystagmus. His Preliminary Breath Test results were triple zeros. At that time, officers begin thinking it’s not alcohol, but a narcotic is the impairing substance. However, I went up to the motorist who was leaning up against his vehicle. Sure enough, his speech was extremely slurred and he had little balance ability. As he was speaking to me, he did not have an odor of an alcoholic beverage about his person, but more of a fruity smell. I immediately opened his back door and had him sit on the back seat with his feet out the door so he wouldn’t fall if he passed out. I asked him if he was diabetic and if he took his insulin this morning. He said yes to both. I asked him when had been the last time he ate, and he informed me it was the day before. I called the paramedics because at that time I believed his blood sugar was dangerously low. Sure enough, when the paramedics checked him his sugar dipped down into the 50’s. They placed an IV in him and injected him with something like glucose (it looked like white frosting) and the transformation was almost instantaneous. He started speaking normally and did not have to hold on to things to keep his balance. He stated he did not desire to go to the hospital. The paramedics told him after checking his sugar again that he was okay to drive himself home but he needed to eat a good breakfast when he got there because the substance that they injected in him would not last.
So let’s think about this. If this were you, the officer may have thought that the substance in your blood was narcotics. If you refuse to take tests, preliminary breath test and the intoxilyzer at the station, the officer might write it up as a refusal and take you to jail. He would then go about his way taking care of paperwork. Meanwhile, you’re incarcerated at the jail until you are “sober” but are actually in a diabetic crisis. Had you submitted to the preliminary breath test and gotten triple zeros and did not have any horizontal or vertical gaze nystagmus, there would be a chance to find out you are actually in trouble, medically speaking.
One other thing about the Standard Field Sobriety Tests–defense attorneys love it when they have so much material to chip away at and provide the reasonable doubt for an acquittal. A well versed and capable officer, the attorney might not lean too hard on him or her. But new officers who are still learning, the attorneys will question them until the cows come home. Occasionally, an officer may say something or may not know how to answer a pertinent question and thereby may produce a reasonable doubt and cause the case to be dismissed. When you refuse all tests, not only will you be also charged with refusal of taking the intoxilyzer, you give your defense attorney very little to work with.
So, if you still don’t believe me, by all means, refuse all tests if you get pulled over. Have fun losing your license in Virginia for a year for refusing to submit to the intoxylizer, and that’s even if by some chance you get found not guilty of DUI.
Myth #4 If I am too drunk to drive after my buddy’s party, then all I need to do is crash and sleep for a few hours at his house and I should be fine to drive home.
There are still some people out there that will tell you that you need to “sleep it off”, as if sleep accelerates the alcohol in leaving your blood stream. And before you ask, strong black coffee has absolutely no effect on this either. It will probably only make a wide awake drunk.
There have been some Saturday or Sunday mornings that police officers come across someone at 0630 through about 0800 hours that are weaving in the roadway and driving erratically. They were certain when their buddy’s wife threw cold water in their face to wake up and leave, they were perfectly sober and would have no issue getting home. Oops. That just wasn’t the case. What did you expect when you started drinking at 1400 hrs and had been drinking constantly until about 0200 or 0300 hrs where you passed out. Did you honestly think that by sleeping three hours would sober you up completely?
Don’t buy the idea that you can do something that will hasten the lowering of your BAC . The only thing that gets rid of alcohol in your blood is time. My suggestion is that if you are going somewhere that you intend to be drinking, don’t do it without a designated driver to take you home. Otherwise you may have a sharp uniformed officer that will be your designated driver to drive you to your temporary one.
Myth #5 If the police do not see you drive, they cannot arrest you for DUI.
There are several ways that an officer can piece together that you were driving the vehicle and was doing so inebriated. One way is by witnesses. Now, it cannot be anonymous witnesses, but those willing to come to court. In these situations, you may have a motorist who witnessed someone driving erratically. They called it into dispatch and stayed on the phone to update dispatch on the location. They followed him to a grocery store and he was coming out with a twenty four pack when the police arrived. The dispatch will get the information from the witness and the intent to come to court for the motorist’s trial. Once that is established, the officer can, upon the witness’ eye witness account along with the officer’s immediate observation of indicators, and the camera footage inside the store that showed him not drinking more alcohol, can continue the investigation and, upon the probable cause standard being met, make the arrest. And he did not see the one arrested even in the driver’s seat of the vehicle.
During a fatal crash that claimed the life of one passenger and mentally and physically impaired the other passenger for life, being that the driver was laying on the roof of the truck and not seated in the seat, it was difficult to reconstruct the crash with him as the driver. When he was questioned twice, he said that he could not remember if he was driving or not. It took several months, but with approximately 20 of his acquaintances coming to court to testify that he would never allow anyone to drive his truck, not even his girlfriend or his parents who bought him the truck, his attorney finally told him he better take a plea because “Officer Cravey has done his homework.”
Also, I will let you in on something. If you are intoxicated and you pull off the road to keep from getting a DUI, and still have the keys in the ignition, even if the engine is not on, in Virginia you can still be arrested for DUI. Keys in the ignition according to the law is enough to show you in operation of the vehicle. Fair warning.
Those are just a few misunderstandings about DUI investigations. The biggest myth, I suppose, is that you cannot get caught. Keep thinking that. And you will. Please don’t ruin the rest of your life, the life of others or end yours or theirs. Prevent it from happening. Get a designated driver. Or stay home and drink, if you must. The best way to get off a DUI charge is to not have one in the first place. Be smart.
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