As a criminal defense attorney, the second most common question I get asked
is, “What should I do if I have been drinking and get pulled over?”
The truth is that it depends, and even after practicing criminal law for
over 16 years and having conducted over 40 DUI jury trials as a prosecutor
and defense attorney, my own mind would be spinning if I found myself
in that situation. Over the next few weeks I will discuss the many aspects of a
DUI while offering real life examples to illustrate my points in this 3 part
- Part 1 will go through the initial stop and contact with a law enforcement officer
- Part 2 will describe and discuss Field Sobriety Exercises
- Part 3 will discuss the implied consent law and describe the breath test.
While much of what I will offer can apply anywhere, most of my references
will be to St. Augustine and Northeast Florida, where I practice. My hope
is to answer some common questions about DUI, give some advice about what
to do if you ever find yourself facing one, and provide some entertaining
stories along the way. So let’s get started.
Lights and Sirens
Fact: The best way to avoid a DUI is to not drink and drive.
Sorry, I had to say it. Of course no one ever intends to get arrested for
DUI, but the reality is that DUI is the most common “first offense”
people without any criminal record commit. Many former clients of mine
have also reported never even receiving a traffic ticket before their
DUI arrest. I believe this is what makes DUI such a hot topic with people.
Fact: It is really rare to get arrested for DUI if you never get stopped.
I am not suggesting you should lead the officers on a high speed chase
own Interstate 95 to try and get away, but to rather take some steps to
minimize the reasons they have to stop you. For instance, remember to
turn on your headlights when you leave Local Heros bar, the new Salt Life
restaurant, or your friend’s house. Make sure all the lights are
working on your car. Broken taillights and license plate lights are favorite
“reasons” officers use to pull people over. Don’t speed.
Don’t drive too slowly. This is another favorite reason to stop
people. Make sure your tint isn’t too dark. Always wear your seatbelt.
You also want to avoid hitting curbs, swerving within your lane, and crossing
into the lanes of oncoming traffic! Sober or not, no one is a perfect
driver, and the odds are that we all will be pulled over at some point
for some real or made up violation.
A prior DUI client reportedly drove for 2 miles down A1A through St. Augustine
Beach with an officer following her with his lights flashing and siren
going. According to the report, she appeared “legitimately surprised”
to see the officer standing in her driveway when she opened her car door.
Assuming you have better hearing and eyesight than she did, few things
get the adrenaline pumping like seeing flashing lights come on behind
us, or hearing a siren scream to life whether or not we ever saw the police
car. Now add to the mix that you have had a few, or a few more, adult
beverages, and you are facing a real challenging situation.
As we discussed before, officers have many reasons to justify stopping
someone. The first thing you need to recognize is that the officer is
logging every action you take and don’t take from that moment on.
Whether or not you stopped at the first “safe” location; hit
your breaks too hard; sped up at all; parked correctly; turned your car
off or left it running; remembered to use your turn signal to pull over
or turn off the road and then turn it off once you do park; and, put your
car in park. Some of these may seem obvious, but when you are under the
stress of the situation you would be surprised at what can happen. One
client was on a motorcycle and when he stopped he forgot to put down the
kickstand when he got off the bike and it fell over. Another client forgot
to put her car in park and it started to roll away when she was asked
to get out of her car. It may have just been nerves, but both police reports
in those cases attributed the failures to alcohol.
Personally speaking, if I ever find myself pulled over and I have been
drinking, here is what I will do. Get my driver’s license, registration,
and proof of insurance together as quickly as possible. Crack my window
as little as possible and slide those documents out to the officer. My
hands will otherwise remain on the steering wheel and I will be looking
straight ahead. Doing these things requires the officer to make a decision.
Does he accept my proper documentation, write me a citation or warning
for whatever traffic offense he stopped me for, and send me on my way,
OR does he demand that I take further action that can later be argued
to be unlawful.
Fact: Officers who believe you are under the influence are looking for
ways to back up their belief.
Just to name a few:
- inability to follow instructions like providing your license, registration,
and proof of insurance;
- smell of alcohol on your breath;
- bloodshot watery eyes;
- slurred speech;
- dilated pupils;
- constricted pupils;
- flushed appearance;
- nervousness; and,
- swaying or inability to stand.
As you can see from the list, if you provide the required documents and
do not otherwise interact with the officer, you limit their ability to
support their belief you are under the influence and move forward with
a DUI investigation. You are also laying the groundwork for a motion to
suppress which can limit the evidence the State Attorney has to use against
you at trial.
In one of my first DUI trials as a prosecutor the defense attorney told
the jury that his client had been at a pool party the afternoon of the
arrest. He had been swimming and the chlorine from the pool made his eyes
red. He had one beer which made his breath smell like alcohol. He had
just heard a sad ballad on the radio that reminded him of his dear mother
back in Nicaragua that made his eyes water. And, drum roll please, the
burrito he had just bought was steaming hot and dropped into his lap as
he was driving and made him swerve all over U.S. 1. Very creative and
entertaining I must admit. But the jury still convicted his client.
Help me help you is all I am saying. Next week we will look at the situation
where a person is stopped by an officer after drinking and is asked to
perform field sobriety exercises. Should you do them? Is it possible to
do them correctly? Check back next week and find out. In the meantime,
call us if you find yourself needing experienced
criminal defense representation in St. Augustine, or the rest of Northeast Florida.