New Year’s Eve is a time to celebrate, make resolutions, and ring in the 2012 year with some adult beverages. DUI’s make a New Year not so happy. As wonderful as our City is, we suffer from a severe lack of practical public transportation and often times we have to drive long distances between where we live and where we want to go for fun. Police officers know this. We see them hanging out at busy intersections, at the bottom of our most traveled bridges, and in the middle of Jacksonville’s entertainment zones...waiting. You just finished dinner with friends and had a couple cocktails while you waited for your table. You are by yourself and have to drive home. Your last drink was over an hour ago and your home is 30 minutes away. You feel fine so you get in your car and head home. Then something that you did not expect happens, you get pulled over.
DUI is a serious crime. While it may only be a misdemeanor in the criminal Statutes, it’s serious because of the impact getting a DUI can have on your life. Imagine how difficult your life would become if you woke up tomorrow knowing you could not drive for at least six months. DUI is one of the only crimes on the books where you can be arrested purely on the police officer’s subjective opinion. This is important because while a police officer may believe you are under the influence, there are many things you can do to eliminate the evidence that you are under the influence. This begins while you’re driving.
While you are driving, eliminate any basis a police officer may have for pulling you over. Use common sense. When you’re driving at night, especially on the weekend, DO NOT SPEED. Use your turn signals when changing lanes. Stop completely at stop signs. Don’t accelerate through yellow lights. Don’t screech your tires. Any of the above will get you pulled over. If a police officer has no basis to pull you over, you can’t be charged with DUI. Before you start driving, know exactly where your license, registration and proof of insurance are. If a police officer sees you fumble for these documents, he will assume they are indicators of impairment.
If you happen to get stopped, especially late at night on a weekend, first remain calm and have your license, registration and proof of insurance ready for the police officer. Don’t give him or her any reason to suspect anything more than a traffic violation. If the officer starts asking you questions, speak slowly and calmly and answer the officer’s questions directly, but don’t admit to drinking alcohol under any circumstances. It is not against the law to drink and drive.
If the officer asks you to step out of the car you must comply. But, if the officer asks you to perform field sobriety exercises, you have no legal obligation to do so. These "exercises" are not exercises at all, but tests. They are tests designed to be failed. No one practices walking nine steps heel to toe in a straight line in two directions. Studies have shown that the majority of people, who attempt the standard field sobriety exercises sober, fail them. If you are not wearing flat soled shoes, have a bad knee, a bad back, are sick, even if you’re just cold, you have a valid reason for refusing the field sobriety exercises. Tell the officer why you don’t feel comfortable performing them. If you’ve had anything to drink, it’s most likely in your best interest not to perform them. If you don’t have a specific reason to refuse them, there’s nothing wrong in saying that you just don’t feel comfortable. If you haven’t had anything to drink, or you are otherwise sober, and you do feel comfortable performing the exercises, only perform the exercises if the officer can videotape you. This is important because regardless of how well you THINK you did, the officer will find things you did wrong. He won’t focus on the eight times you stepped correctly on the line, he’ll focus on the two times you didn’t. Or the fact you stood on one leg for the entire 30 seconds, he’ll focus on your arms going up and down to keep your balance. Once the officer writes a narrative of your performance, you won’t have any proof of how you actually did unless you have a videotape.
If the police officer does find probable cause that you are under the influence of alcohol, you will likely be arrested and taken to the police department. Once you are under arrest, you have the right to remain silent. Do not say anything at this point. Anything you say absolutely will be used against you. If you cry, the officer will interpret this as a sign of impairment. Any time you speak, you give the officer the ability to say that your speech is slurred, which is an indicator of impairment. If you are taken to the police station after being arrested for DUI, you will be given a breath test by blowing into an intoxilyzer; a machine that analyzes your breath to determine how much alcohol you have in your blood. Studies have shown these machines to be inaccurate. Refusal to provide a breath sample will result in your license being suspended for six months. If you don’t give a breath sample, there will be no evidence of your blood alcohol level. Therefore, if you haven’t had anything to drink, it is safe to give a breath sample. If you HAVE had anything to drink, even though you may not feel intoxicated or under the influence, an intoxilyzer that hasn’t been properly calibrated, can give a false reading. In other words, it could produce a reading of .09 when you are really .07. Once that test has been performed, it can’t be undone. However, if the officer had no probable caus e to pull you over in the first place or had no probable cause to arrest you, and you refuse to give a breath sample, you can challenge the automatic six month suspension by requesting a hearing with the Department of Motor Vehicles within 10 days of being arrested.
Unfortunately, DUIs can happen to anyone. They do not discriminate on the basis of wealth, race, sex, or skin color. Every night of the week people just like you or I could get arrested for DUI who are not guilty of driving while under the influence to the point their normal faculties are impaired. Sometimes it’s about being at the wrong place at the wrong time. If you take all the right precautions and still get arrested, an experienced attorney with significant training and expertise in handling DUI cases can help you. Please stay safe this New Year’s weekend.
Zisser Robison Brown Nowlis Maciejewski & Cabrey, P.A.