WHAT TO DO WHEN STOPPED BY THE POLICE AND YOU HAVE BEEN DRINKING?
- COOPERATE but protect yourself. These may seem like competing concepts but you can remain cordial and still stay quiet and refuse the tests you need to refuse. Remember you have the right to remain silent. Exercise it. Say nothing! This applies at all times during the interaction. The Police Officer may not appreciate but the Judge will understand it and respect your exercise of rights.
FIELD SOBRIETY TESTS are voluntary – YOU DO NOT HAVE TO TAKE THEM. These are the tests on the side of the road. Often they are one or more of the following:
- One leg stand
- 9 Step Walk and Turn
- Alphabet Test
- Counting Test
- Finger to Nose Test
- Follow a pen with your eyes (Horizontal Gaze Nystagmus Test)
- Finger Dexterity Test
These tests are voluntary and your performance on them is used by the officer to determine probable cause for the arrest. If you do them your are providing evidence against yourself.
ROADSIDE BREATH TESTS (or Preliminary Breath Tests) – In Virginia, this test is Voluntary and the officer must tell you so. YOU HAVE THE RIGHT TO REFUSE THIS TEST SO REFUSE IT. Prior to administering this test, the officer must tell you that (1) the test can not be used against you in a prosecution for DUI; (2) that you have the right to observe the process and see the result of the test if you request; and (3) that you have a right to refuse the test. Why would you take this test? The officer will try to talk you into it saying that it is a tool that he uses to determine whether or not he’s going to arrest you. While this is true, it also conclusively establishes Probable Cause for the arrest and takes a challenge away from your lawyer.
BREATH TEST BACK AT STATION AND IMPLIED CONSENT
By Virtue of your operation of a motor vehicle on a highway in Virginia, you have already consented to taking a breath test back at the station. This is often done on a larger machine (Intoximeter EC/IR II). You can refuse this test but if you do you will be charged with another offense – unreasonable refusal. Prior to charging refusal of this test, the Officer must advise you of the consequences of refusal. A first offense is a civil punishment that is punishable by only a 1 year license suspension. Second and third offenses become criminal and can be punished by jail time. Additionally, your license will be taken for additional periods of time. (THERE ARE NO RESTRICTED LICENSES GIVEN FOR LICENSE SUSPENSIONS RESULTING FROM A REFUSAL CONVICTION) Understanding these penalties, make an educated choice regarding taking the test. Many lawyers would tell you not to take the test, but this is personal choice dependent on how important your license is to you. Many times, a lawyer can win the DUI | DWI but lose the refusal; however, it increases our negotiating power and may result in a plea bargain where the guilty plea is to something other than a DUI | DWI.