The traffic stop

All statements made in this post are just my opinion based on my experience. I am not a lawyer. This is not legal advice. If you need legal advice contact a lawyer.

There are many reasons the police may contact you. The obvious one is if you break a traffic law such as speeding. Many people think, "As long as I don't speed and follow all the rules they'll never stop me."

The problem with that thinking is that there are many other reasons the police may contact you:

1. DUI checkpoints
2. If someone else hits you
3. If you hit someone else
4. If your car breaks down
5. etc.

In my case, I was already stopped because I pulled over to the side of the road to send a text. But no matter how they stop you, you know you're in hot water when you hear the question, "Have you had anything to drink tonight?"

I do have a couple friends who have told me they have talked their way out of being arrested after hearing this question. But my opinion is that when a police officer asks you this he has already decided to take you to jail based on smelling drinks on your breath, slurred speech, or red eyes. Everything he does from here on out is just to get more evidence against you.

So how do you answer the question? If you really haven't had anything to drink that night then say no. But if you really have had something to drink, saying no may cause problems for you for lying to the officer. At the DMV hearing evidence that you lied will be taken into consideration. When negotiating with the District Attorney the fact that you lied may hinder your request for a lesser sentence.

So you shouldn't say no in that case. But if you say yes that gives the officer a good reason to take you through the field sobriety tests (which, again, is just to get more evidence against you). So the only sensible answer you can give is to say, "I'd rather not answer any questions." You will surely go to jail now, but the only evidence against you will be smell, slurred speech, red eyes, and what he observed of your driving patterns. In my case I said yes, because I knew my speech was slurred and I thought I could convince him that I only had 2 drinks. I think most people think they can talk their way out of it, so they're honest enough to say yes, but are dishonest about how much they drank. You'll hear stories from people who say they talked their way out of it, but it didn't work for me.

After I said yes, the officer asked me to step out and go stand in front of his police car. Remember, this was a CHP officer so your experience may vary when dealing with other departments. The walk you take will be evidence against you too. He will say that you walked with an "unsteady gait." Next, the officer conducted an "interview" where he asked a bunch of questions called "pre field sobriety test (FST) questions." Remember that lying on any question may be used against you later. But the truth can be used against you too, here's how they plan to use those questions against you:

1. Are you sick or injured? If you say no then you can't say the FST's were invalid because you were injured.
2. Do you have any physical impairments? If no, now you can't say you were unable to do the tests correctly.
3. When did you last sleep? Now you can't say you were sleep deprived.
4. When did you last eat? What did you eat? Any answer to these question limits your ability to explain away the alcohol content test results.
5. Were you driving the vehicle? They'll ask you this even if you were the only one in the vehicle. It appears that many people get out of trouble at trial by saying "they didn't prove that I was the one driving" so the officer will ask this question and list all kinds of things on the report that can prove you were the one driving (seated in driver's seat with seat belt on, engine running, registered owner of the vehicle, etc.).
6. Where did you start driving? If at a bar, that doesn't help your case.
7. What have you been drinking? How much? This is where you'll feel the need to fib, which can cost you in the end.
8. What time did you stop drinking? Any answer to these question limits your ability to explain away the alcohol content test results.
9. Do you feel the effects of the drinks? If yes, then you are admitting to being under the influence of the drinks.
10. Have you taken any medicine or drugs? If no, you lose another explanation for how alcohol got into your system.
11. Do you feel the effects of the medicine? If no, now you can't claim the medicine affected your performance on the FST's.
12. Have you had surgery performed recently? If no, now you can't say you were unable to do the tests correctly.

As you can see, all of these questions are intended to gather evidence against you or take away potential defenses you might have in court. The key to negotiating with the District Attorney is to show them all the possible defenses that you have. When you limit your defenses you give up bargaining power. Therefore, I believe the best answer to any and all of these questions is to say "I'd rather not answer any questions."

Having finished the questions the officer will move on to the FST. In my case the first test attempted was the HGN test. This is the one where you follow an object with your eyes. However, the officer did not say "OK, we're going to do the tests now." Throughout the "interview" he was giving directions about where and how to stand. He simply continued these instructions to stand here, then stand there, put your feet here, put your arms there, look here, look there, stand there, put your feet like this, next thing I knew, I had completed the HGN test and was starting the Romberg Balance test even though I knew it was a bad idea to do any of the tests.

Which brings me to the field sobriety tests themselves. Again, they are only used to gather more evidence against you. If you fail, you fail. If you pass, it was "inconclusive." They don't need any of the tests to arrest you. They can arrest you only on your speech, smell, or any other indication that you are above .08% or under the influence. The best thing you can do for your defense is to say "I'd rather not do any tests." And yes, you will surely go to jail then, but I believe you'll be in a better position than if you had given them all the evidence they want.

The only questions that I think are worth answering are the ones about your identity. They can't release you from jail until they are sure who you are and don't have any warrants and are not in the U.S. illegally. So I recommend answering questions about your name, social security number, place of birth, etc. but nothing else.

Bottom line, if you are asked questions about drinking and you have been drinking, I think the best thing you can do is don't answer any questions and don't do any of the tests. Everything I said was truly used against me.

Here's my story, sad but true

First of all, it can be dangerous to drink and drive. I don't encourage it. Before going out to drink you should have a plan for how you're going to get home and stick to it. I did have a plan, I did not stick to it.

I went to a bar where I've been hanging out for years, about 30 minutes from my house. My plan was simple and had always worked until that night. I would get there around 9pm, drink 2 drinks between then and 11pm, then switch to drinking sodas the rest of the night. By 2am I would be legal to drive. That was the plan.

Here's how the plan fell apart. First, they started a new waitress there that night who was fast with bringing me my drinks. This was in contrast to the previous waitress who would forget about my order and I would wait 30 minutes before getting my drinks. So I got there and drank my first drink right away. As soon as I set down my empty glass the new waitress came right over and said "Can I get you another one?" How can I say no? And 2 seconds later my new drink was on the table. I finished that one and she was right there again, "Can I get you another one?" I looked at the clock and it was barely 10pm. Four hours to go, I guess there's enough time for one more. And a few minutes later there was time for one more again. I'm not blaming the waitress, but my plan went out the window just like that. And that's the first thing that went wrong.

The second thing that went wrong was that the DJ at this bar is a girl with a real pretty smile. I'd been working for months to get her to let me take her out. She never said yes, but never said no either. So that night I was trying to work up some interest again. And right after that fourth drink came out some thug-looking guy walks into the bar goes up to her, grabs her, and kisses her, and she's kissing him back. And they're 2 feet in front of my face. I knew she'd hung out with this guy a couple times but apparently I didn't know the whole story. And this thug is the reason I can't take her out?? That was enough to make  me pay my bill and get the hell out of there. I walked out, got into my car and started driving home. I knew I had alcohol in my system, but I also felt OK and was driving fine. However, the plan was cold and stiff by now.

A few minutes later I was on the freeway on the way home and I get a text message. It's from her. "Where'd you go?" How do I answer this in a text? I guess I better say something, but what? Maybe I should just ignore it? I can't think. Maybe I better pull over and think about it before I answer.

So I pulled over as far as I could on the side of the freeway. I sat there thinking about what to say and a pair of headlights pulled up behind me. I knew right away it was the CHP, and that my goose was cooked.

"What's going on?" said the flashlight in my face.

"I just pulled over to send a text. I didn't want to be texting while I was driving," I slurred while trying not to slur.

"Well, I appreciate that. Have you had anything to drink tonight?"

You can guess how the rest went. But, so you have some information, let me tell you that I answered all of his questions and mostly honestly. I did say that I had some drinks earlier. I did know enough not to do any field sobriety tests, yet it was noted in the report that I failed the one where you follow the finger with your eyes. I was arrested and blood was taken at the jail and the report said I was at  0.10% (point-one-o). My car was towed and put in storage, and I spent 8 hours in jail. When I got out I had to take a taxi over to the storage yard to get my truck out, that alone was over $200. And that's only the beginning of the expenses.

Once out of jail, the questions in my head were going a million miles an hour. I hope reading my story will convince some that a simple plan is not enough and hopefully you'll avoid going through a DUI arrest. But if it's too late now, then you have some of the same questions going through your head that I did. In future posts I'll give you my opinion on those questions.

IMPORTANT NOTE: I am not an attorney and nothing I write about should be considered legal advice. This is merely a layman's opinion based on my recollection of my experiences for informational purposes only. If you need legal advice you should consult an attorney.

About

There are many questions that came to my mind when I was arrested for DUI in California in 2011. Many of the answers I found online to my questions were from lawyers. Let's face it, a lawyer is always looking for clients so you have to be a bit skeptical about what they say. I did much of my own research and have now survived through the process. I will put this blog together as a sort of F.A.Q. for DUI arrests based on my experience to help anyone else who may have the same questions I did about what to expect after being arrested.

Note that my arrest was in Riverside County in California and your experience will vary from county to county (depends on the agenda of that county's District Attorney).

IMPORTANT NOTE: I am not an attorney and nothing I write about should be considered legal advice. This is merely a layman's opinion based on my recollection of my experiences for informational purposes only. If you need legal advice you should consult an attorney.