Pulled Over for a DUI Check? One Attorney's Advice & Suggestions
It's the image no one wants in his rearview mirror: those swirling emergency lights atop a police cruiser. It's bad enough if we've been speeding or have violated other rules of the road. But when this occurs after having had a drink or two, it's downright terrifying.
Worse, these situations represent among the few instances when you are not entitled to an attorney: the roadside field sobriety test; the alcohol Breathalyzer test at the police station; the blood-alcohol content test at the hospital.
Here, the DUI suspect is on his or her own.
But our attorney, who focuses his practice on criminal law and bankruptcy at Scaringi Law, has some good advice for drivers who find themselves in these unnerving situations.
Our first three pieces of advice are simple but effective:
· Don't drink to excess, and arrange for alternate transportation if you do.
· Keep all car registration and inspection stickers up to date and make sure all vehicle lights are working. Failure to keep your car properly maintained gives an officer reason to pull you over.
· Obey the rules of the road and don't become distracted by anything, including cellphones, mini-media players or texting.
Just these three rules can go a long way toward keeping those police lights out of your rearview mirror, our attorney says.
You've been pulled over. Now what?
When you see those flashing lights, slow down and pull off the road as soon as it is safe to do so. Then be patient and sit tight.
The officer will run your license plate number to see if there are outstanding warrants. The officer wants to know who and what he is dealing with before approaching your vehicle. Keep in mind that a vehicle stop is among the highest of risk situations for an officer. Don't give him reason to feel the need to protect himself against you, Sembach says.
Remain seated in the car. Keep both hands on the wheel. Don't root through your glove compartment for your registration. Wait for the officer and his instructions.
There is one thing you can do, Sembach adds: Roll down the car windows. The officer will be coming to speak with you soon, and if you have had a drink or two, the fresh air can clear your head and air out the vehicle.
"The officer is going to be checking for certain things, including a strong odor of alcohol," Sembach points out. "Opening the window can help."
Another good idea is to turn on your car's interior overhead light. This shows you have nothing to hide, alleviating some of the officer's concern. But your cooperation should go only so far. If the officer asks for your consent to search the vehicle, politely decline. It's within your rights.
"You absolutely want to say no," Sembach says of a request to search your car. "Make them go through all legal procedures. There is no benefit to giving consent. None."
Once the officer arrives at your window, follow his instruction s to the letter, no more, no less. And wait for each command.
Hopefully you can find your registration easily. Fumbling around for it can be interpreted by the officer as a sign of inebriation. And this could go a long way toward establishing probable cause for a Breathalyzer test or blood-alcohol test at a hospital.
Field sobriety test
An officer might want you to undergo field sobriety testing along the roadside. To request a field sobriety test, the officer must have a reasonable suspicion, such as an odor of alcohol on the driver or red, glassy eyes.
Unlike with a Breathalyzer or blood-alcohol test, a driver can refuse to participate in field sobriety testing without penalty. It might be a good idea to refuse, because if you fail, you might be giving the officer probable cause to arrest you for DUI.
Breathalyzer and blood-alcohol tests: the request you should never refuse
If the officer believes he has probable cause in the DUI stop, he will place the driver under arrest and take him or her to the station or the hospital. There, the officer will ask the driver to submit to a Breathalyzer test or blood drawing to check blood-alcohol content.
YOU SHOULD ALWAYS CONSENT TO THE BAC TESTS. IF A PERSON REFUSES, HIS LICENSE WILL BE SUSPENDED FOR ONE YEAR.
Before the BAC test, the officer likely will read you your O'Connell warnings, explaining the penalties for refusing the BAC test, and will have you complete a DL-26 form that shows that you received the warnings.
"I think the biggest mistake would be not consenting to the blood draw," Sembach says. "The Legislature believes that driving a motor vehicle on the roads of the commonwealth is a privilege, not a right. By driving you have consented to a BAC determination."
Once you decline a blood-alcohol test, you can't change your mind. You have just lost your license for a year.
"Either you did consent or you didn't consent," Sembach points out. "You can't decide sometime later. And you are not entitled to an attorney at this point."
Typically, a driver who is arrested and brought in for a blood-alcohol test is charged, booked and brought before a district justice. All of this happens well before the blood-alcohol test results are known. Usually, the driver is released when sober.
At this point, the driver should contact an attorney, Sembach says, because now he needs more than advice and tips.
He needs legal representation to protect his criminal record, his driving privileges, even his freedom.
"That's another good piece of advice," Sembach adds. "Don't wait to contact an attorney. Do so immediately."