Updated on 09/09/2021 / Under DUI
As a DUI defense attorney, I get asked questions all the time about driving under the influence of alcohol investigations and what the police officers can and cannot do. So Instead of having to answer people all the time, I have put together a list of the common DUI myths. Enjoy!
I Have to Answer the Police Officer's Questions and Perform Tests They Ask Me to Perform
The most common question I get about DUI traffic violations is, “Do I have to take the field sobriety or breath tests?” The short answer is no! In fact, I would almost never recommend talking to a police officer and performing field sobriety tests.
When a law enforcement officer pulls you over, the only thing that you are required to do under the law is to provide the police officer with your driver's license, a copy of your insurance, and a copy of your registration information. After handing over that information, you have the constitutional right to not answer any questions, refuse to perform any tests, or give blood samples!
Most DUI investigations will start with the police officer asking questions about your night and the officer trying to ascertain if you have consumed alcohol. If you admit to drinking, you have given the police officer probable cause to continue his investigation and that will likely lead to the officer asking you to take a breathalyzer or perform field sobriety tests.
If you perform the field sobriety or breath tests and the officer believes you performed poorly on tests of sobriety, then you are getting arrested and there will be plenty of crucial evidence and police testimony against you in court. If you are being investigated for a DUI, do not talk to the police without legal counsel and do not perform any tests!
I Can Not be Arrested Unless I'm Drunk
This is False: If you have performed poorly on a field sobriety test, then a police officer can still arrest you for drunk driving. Standardized field sobriety tests are designed to test people's ability to balance their mental and physical abilities at once. Alcohol impairs an individual's ability to use both mental and physical facilities at the same time. Unfortunately, there are also many other factors that can affect someone's ability to perform these tests well. Some common examples of ways someone can perform poorly on a test without alcohol impairment include:
- A diabetic with low blood sugar
- Someone experiences a migraine headache
- Someone who is sleep-deprived
- Someone who has taken prescription medication
I Have to be Driving Before I Can be Arrested For DUI?
Not true! Under the law, if you are in actual physical control of any motor vehicle then you can be arrested for a DUI offense. You do not need to actually be driving, you simply need to have control over the car and have the ability to drive the vehicle. For example, you can have your car parked and be sleeping in the driver seat and you can still get arrested for a DUI offense.
Conversely, if you are sleeping in the back seat of the car and the keys to the car are locked in the trunk, then you cannot be considered to be in actual physical control of a vehicle. What matters is whether or not the driver has the ability to drive the car. Furthermore, you can still be arrested for DUI if your Blood Alcohol Concentration is above the legal limit and you are sitting in a private parking lot.
If I Refuse to do Field Sobriety Testing I Won't Get Arrested For a DUI
This is false! Police officers are trained to look for indicators of impairment from the time they first come into contact with your vehicle driving. A police officer will still arrest someone if they refuse to do any field sobriety tests or use a breathalyzer machine. Police reports for DUI arrests routinely cite a person's slurred speech, admission of drinking alcohol, bloodshot eyes, smell of alcohol on their breath, and poor driving as reasons to arrest a motorist for drunk driving.
Although it is a good idea to not take field sobriety tests, a refusal does not guarantee that you will not be arrested in the first place. Refusing to take field sobriety and breath tests will usually mean that there is less key evidence against you once you have been charged.
If Suspected of DUI, Can I Tell the Officer that I Want My Lawyer Present to Prevent Being Charged
Nope! Not true. You have the constitutional right to consult a DUI attorney to help build a strong defense once you have been arrested and before questioning. However, you do not have the right to delay a police officer's investigation before you have been arrested for an offense. In the vast majority of DUI cases, the police officer will request you to perform field sobriety tests and a breath test before he ever actually arrests you for the charges.
Remember that being detained and questioned and being arrested for a crime are two different things. It is only after you are arrested that your legal rights to your lawyer kick in. Although you can have legal representation present on the scene, the officer will not delay his investigation and he will write you down as a refusal to cooperate with field sobriety or blood tests.
Breath Mints or Gum Can Beat a Breathalyzer or Throw Off the Suspicion That I'm Impaired by Alcohol
This one is absolutely not true! Law enforcement is trained to look for multiple clues to determine if someone is above the legal alcohol limit. Some common clues besides the odor of alcohol are bloodshot eyes, slurred speech, disheveled appearance, poor motor skills, and poor driving. I have personally had several DUI cases where the police officer has stated that he did not smell alcohol on the person's breath at the time of driving but still arrested them for DUI.
If I am Stopped, and the Officer Smells Alcohol, Can I Talk My Way Out of Being Arrested?
Nope! We have all heard the story from our parents or grandparents that they just slipped the officer a twenty or a ten dollar bill and the police officer let them go. Well with the wonderful invention of body cameras, those days are gone!
No police officer will simply let you slide because they would be risking their job for you. Unfortunately, there have been too many circumstances where a police officer has let someone with a blood alcohol content above the legal limit go in the past and that person ended up killing another person on the road.
There is a police record of every traffic stop and a police officer needs to be able to justify every single traffic stop. If you think you are going to talk your way out of a DUI, just be careful because you are more likely to talk yourself into more charges!
It is Just a Misdemeanor Charge, It is No Big Deal
Another Myth! Although a misdemeanor DUI charge is not the end of the world, this legal trouble is much more serious than a minor traffic offense. Unlike other misdemeanor offenses, a DUI will cost a driver upwards of $10,000 and can face license suspension for a period of time. Almost every DUI charge will require you to undergo at least 22 hours of DUI cases as well as potentially requiring you to perform community service and get an ignition interlock device. Furthermore, every DUI charge comes with the possibility of prison time and marring your criminal record for a lengthy period of time.
Another thing worth mentioning is that you can easily be charged with a felony offense even if this is your first DUI. A felony DUI is generally a class 4 felony, which is punishable by 1-3 years in prison and a $25,000 fine. If you get a felony driving under the influence conviction then your license will also be revoked and you will need to have a license hearing with the secretary of state to get it back. Below is a few examples of how to be charged with a felony DUI:
- Driving under the influence of alcohol with no valid license
- Driving under the influence with no valid insurance
- Driving under the influence and causing an accident with great bodily harm.
- Driving under the influence and causing any accident in a school zone
Contact Our Attorneys For Help With Your DUI Case
If you are thinking about drinking and driving, you need to first think about risk vs reward. The cost of a DUI can well exceed $10,000 and you will always be facing the possibility of jail time. A DUI will be on your record permanently and you will most likely be facing a license suspension.
With the technology we have available today, you can order an Uber in a matter of minutes for the price of a meal. Do the smart thing and do not get behind the wheel drunk! If you are facing DUI charges contact our attorneys to review your legal defenses.