The Savela Law Firm, P.C. - 720-260-7392
My Cocktail Party Advisement on DUI
(originally published in CTLA’s Trial Talk)
I think most people assume that all attorneys know how to defend DUIs. They don’t. Many criminal attorneys have little understanding of the science and general basis of DUI cases. The only people who can truly help you are those lawyers who spend the majority of their time fighting for the rights of those accused of DUI. Just keeping current with the science is a full time job. In addition to knowing criminal law and procedure and the ever-changing, multiple-paragraph, multiple-subpart DUI law, we must know the rules and regulations of the Department of Motor Vehicles (“DMV”), the many cases interpreting those rules (some of which are unpublished, but extraordinarily powerful in DMV hearings), the science of alcohol absorption and metabolism, including how and why blood and breath testing can be completely inaccurate.
Although I do not condone drinking and driving, I recognize that the laws on this subject are very severe, the machines used to test blood alcohol content (“BAC”) are unreliable, and this is more of a political issue than a public safety issue. This is my advice to you.
How to Avoid DUIs – Don’t Get Pulled Over
Police officers are always looking for someone to pull over for DUI. In this era of heightened security and government sponsored fear, the police are encouraged to stop you for any traffic infraction, no matter how slight. Once the police have a reason to stop you, they can and will look for evidence of other crimes, especially DUI. So, they pull you over for silly things that do not affect public safety. Often the evidence they find is for the crime of DUI. Some ideas on ways not to get pulled over:
1. Try not to look poor or like a minority.
2. Keep your car in good working order.
3. Periodically, check that all the lights work.
4. Make sure that you turn on your headlights at night.
5. Keep your license and registration up to date and visible.
6. Drive at a reasonable speed, but not too slow.
7. Pay attention to lane usage and turn signals.
8. Come to a complete stop at stop signs and intersections.
9. If you have a flashy car, know that everyone, including police are looking at you. Make sure the flash is legal.
10. Do not throw cigarettes out of the car window.
11. Make your drunk friends puke before they get in the car.
12. Walk or call a cab.
Although the above suggestions are great, what I really want to discuss is what you should do after the lights and sirens come on. The officer is looking for any sign of DUI. Most anything can be a sign of DUI.
Grab your Favorite Potable and Learn
Whenever I am at a place where alcohol is served and people find out that I am a criminal attorney, I get asked about DUI's. I tell stories and give my advice while my beer gets warm or my cocktail loses its flavor to water. But, after I say my piece, I get the questions about popular knowledge and DUI myths. Everyone has heard DUI advice from someone. The problem is that the advice is rarely correct, at least for the DUI law in Colorado.
“I heard that you are supposed to suck on a penny.” “My friend told me to never take the breath test.” “The cop told me to request his presence at the DMV hearing because he would not show up and I would get to keep my license.” "Chew peanuts."
After explaining why each myth is wrong, everyone is confused on what to do when suspected of DUI.
Considering this is a cocktail party and not a three day conference in Key West, I suggest the KISS (keep it simple, stupid) approach. No matter how good the DUI information, it is useless unless it is remembered and not confused. There are a lot of specific defenses for specific DUI situations. If I could stand next to you as you interact with the police, these specific DUI defenses could be preserved, but unless you take me drinking, I cannot. I think most people would rather a short answer that covers most situations than a dissertation on all the ways a case can be won. (Although some states do, Colorado does not allow the accused DUI suspect to contact a lawyer for advice during a DUI stop.)
DUI’s have two parts, DMV and Criminal. DMV involves the possible suspension of your driving privileges and entitles you to a hearing. The Criminal part entitles you to a trial by jury and can result in jail, probation, alcohol classes, fines, and points leading to a further license suspension. The evidence is the same, but these are different forums and different standards of proof. Fortunately, there is only one set of simple rules to deal with both. Rather than organizing this around the parts to a DUI case, I suggest thinking of the situation chronologically (complying with KISS).
The lights go on and you hear sirens. Your heart sinks and you prepare to pull over, worried about DUI. You will soon come in contact with a police officer who is looking for evidence of any crime s/he can find, especially DUI. You must provide some information to the officer, but you do not have answer every question or submit to every request. In fact, you only have to provide your driver’s license, vehicle registration and proof of insurance.
Do and Say As Little As Possible
If you are pulled over while driving a car, everything the police officer observes could be evidence of intoxication or DUI. The police officer is looking for you to react too slowly (or quickly) to his lights/sirens, poor driving, hand movements in the car, slurred speech, mumbling, incoherence, inability to do two tasks at once, and 50 other things that you cannot remember. Many are simply signs of nervousness, but in court, they sound like a DUI. It is safe to assume that everything the police officer asks of you, is designed to provide her/him with evidence of intoxication or DUI.
Most of us have heard of the Fifth Amendment and your right not to incriminate yourself. This right is not absolute in DUI cases, but it is still available. The problem is that the courts do not think you are in custody when you are pulled over for a traffic violation. So, in order to protect your right not to incriminate yourself, you must do and say as little as possible. Unless the officer clearly orders you to do something, you do not have to do it. I am not suggesting being impolite or belligerent. Cooperate with commands, but not requests. If you do not know if something is a command, ask “Do I have to?” or wait for a second command. In a DUI stop, the only things you have to do start after handcuffs are placed on you.
Most, if not all, requests by police officers during a DUI stop are simply requests. Your response is voluntary. The police will not tell you this. They may even suggest otherwise. The evidence you volunteer is admissible against you. So, do not volunteer anything. The less you volunteer, the less evidence the police have to prove you are intoxicated or DUI.
Usually the first question a person gets is, “Have you had anything to drink tonight?” You do not have to answer this question. In fact, this question assumes that you have answered the unasked question “Are you willing to talk with me?” Most people voluntarily roll down their window when the officer is approaching. You should only roll down your window a half inch and wait for further commands. This allows you to slide your driver’s license, registration and proof of insurance out the window. It allows some conversation. But, it does not provide the officer with easy access into your car (think smell). If you do say you have been drinking, you will most likely be arrested for DUI.
I suggest that you keep your driver’s license, registration and proof of insurance in a single, easily accessible place. Get it ready for the officer before s/he gets to your door. Other than providing this information, do and say nothing more. The officer will take your papers to her/his car and check it through the police computer or radio dispatch.
After the officer checks your name in the computer for warrants, s/he will come back to your car and say s/he smells an odor of alcohol and that you have blood shot watery eyes. This is a clear sign you are soon to be arrested for DUI. S/he will then attempt to get you to complete voluntary roadside maneuvers (VRM) sometimes called standardized field sobriety tests (SFST). These start with a request to step out of the car. Each movement of your body can constitute evidence of intoxication. I suggest that you tell the officer that you do not want to get out of the car. I suggest that you say you do not want to do any roadside maneuvers. The officer will likely order you out of the car. Make the officer order you out of the car. It will help us later. Once out of the car, the officer will request that you submit to voluntary roadside maneuvers. These tests are difficult to pass under the best conditions. They are designed for you to fail and provide the officer with probable cause to arrest for DUI.
The biggest misconception in DUI law is that you are required to do the roadsides maneuvers/VRM/SFST. You do not. These tests are voluntary. If you refuse to do them, there are no consequences. Your refusal cannot be used against you in court. Better yet, there will be no evidence of these worthless tests to support DUI charges.
The second biggest misconception is that a sober person can pass the roadsides. The validation studies conducted by the National Highway Traffic Safety Administration indicate that more than 30% of people failing the VRMs are not intoxicated. Independent validation of these tests shows that very few people can pass them, even sober. This leads to false arrests for DUI. These tests are designed for you to fail.
In Colorado, officers do not use video recording devices in their cars. The only evidence of the DUI stop is the officer’s report (and your word). Even if you do pass them, the police officer can write his report inaccurately to support a DUI arrest. A study has shown that more than 50% of DUI officers do not conduct the VRMs according to the rules and score them incorrectly. Some DUI officers are willing to lie to get a conviction. If it is a swearing contest between you and a DUI police officer, you will most often lose.
The reason the police officer wants you to do roadsides is to develop evidence against you to prove that you are DUI. This evidence is used in two ways. First, the officer can uses it as probable cause to arrest you and require that you take a chemical test of your breath, blood, urine or saliva. If the officer has probable cause, then you must cooperate with the chemical test or you will lose your driver’s license for a year. If the officer does not have probable cause of DUI, then this chemical test is not admissible against you at the DMV hearing or in the criminal case. The second reason the officer wants you to do roadsides is to develop evidence to use against you at a DUI trial. Refusing to voluntarily complete the roadsides is the best way to limit the evidence against you.
No Portable Breath Test (“PBT”)
Unless you KNOW you are under 0.05 BAC, do not take the PBT.
The police officer will ask you to do a voluntary PBT. This is voluntary. Do not take the PBT. The machine used for this test is small and handheld, about the size of a video camera. It is fairly accurate for testing whether there is any alcohol in your breath, but not accurate enough to determine how much is in your blood. Yet, the test will provide the officer with a reading of your BAC that s/he can use for probable cause to arrest for DUI. Retired officers say that they were trained only to use the PBT when the VRM or SFST were weak. The idea is that if the PBT comes out high enough, you can still arrest for DUI.
The PBT result is not admissible in court to prove guilt. If you refuse to do the PBT, that refusal is not admissible either.
To review, this test is inaccurate, it can only be used to provide probable cause for a DUI arrest and refusing is not evidence. It will rarely help you. It most often will cause you to be arrested for DUI. If the officer does not have probable cause to arrest you for DUI after looking at your driver’s license and you do not voluntarily give her/him evidence, then s/he must release you. If s/he does not, then your lawyer has a good case for suppression.
At this point, the officer will have your papers and a few observations of your driving, eyes, and breath. If you have done your job, then you may not get arrested for DUI, but that is never a guarantee. By limiting the evidence against you, you have made it difficult for the officer to arrest you for DUI, but not impossible. If you are arrested, the less evidence the police collect against you, the better your case.
If Arrested, Choose Breath or Blood
No matter what you do, you might get arrested for DUI. Innocent people get arrested, and convicted of DUI. Once arrested, you must take a chemical test to determine your blood alcohol content (BAC) or else you will lose your driver’s license for one year. The only time that you should consider not taking a test once arrested is if you are very intoxicated. If you get a DUI, then make sure you ask your lawyer how to deal with your next arrest.
An arrest in a DUI case is communicated to the accused when the police officer says, “I believe there is probable cause for DUI; you may choose between a chemical test of your breath or blood.” This may be accompanied by placing you in handcuffs or placing you in the back of the police car. If you are confused as to whether you have been arrested, ask.
The test you choose once you are arrested is very important. There are tons of considerations that could be specific to you or your situation during the particular stop. There are many myths about how to handle this portion of the stop. In addition, there is confusion between these tests and the PBT. Simply, if arrested, choose a test. If you want the best chance at an accurate result, choose blood.
Some confusion stems from the fact that most officers have a PBT in their cars. People get this confused with the chemical test of your breath. The chemical test of your breath is conducted on the Intoxilyzer 5000 EN. [It is about to change to the Intoxilyzer 9000.] This is a machine that is similar in size to a VCR. The majority of these machines are housed at police stations, including jails. They are sensitive to interference, including radio frequency and air pollutants. It is possible to place one of these machines in a van. It is highly unlikely that a police officer has one in her/his car. Generally you have to be taken somewhere to conduct this test for DUI.
The Intoxilyzer has flaws. The machine has a very difficult time accurately measuring alcohol in people who suffer from gastroesophagal reflux disease (GERD). Given the prevalence of heart burn remedy advertisements on television, I suspect that many people may have this medical condition. Further, the machine may mistake other volatile chemicals for alcohol. People that work with chemicals, paint, or gasoline may absorb them into the skin and release them through the lungs. The machine thinks it is alcohol. This machine does not measure the temperature of your breath. If your breath temperature is high, then your result will be high. Studies show a person’s temperature varies by several degrees throughout the day. There are many other flaws with the Intoxilyzer. The flaws make it easier than the blood test to attack at the DMV hearing and at trial. Breathing patterns can increase your result (hyperventilation prior to blowing can lower your breath temperature by several degrees, lowering your result).
Refusal is evidence against the accused at a DUI trial. It results in a year suspension of your driver’s license at the DMV hearing. It may result in an additional year of suspension if your are convicted of DUI. The DUI officer’s word will be the evidence of refusal. Refusal may occur when the accused fails to choose a DUI test. It may occur when the accused does not cooperate with a DUI test (i.e. not blowing hard enough or long enough, not being able to urinate, not allowing a blood draw). Refusal may occur when a person attempts to change her/his choice of test. Refusal happens often when a person confuses the PBT with the Intoxilyzer and then gets mad that s/he has to take “two” DUI breath tests. The most important information about refusal is that it can be withdrawn. To withdraw a refusal, the accused must communicate it to the chemical test officer within a reasonable amount of time to allow completion of a chemical test within 2 hours of driving.
From time to time, the DUI officer will not give you a choice of tests. You can still request the test you prefer. The officer may have to justify why you did not get the test you requested. The officer does not have to give you the choices. But, if you request a specific test, s/he has to give you that test except in justified cases.
If the DUI officer suspects drug use, s/he may request a urine test. Go ahead and take this test. The urine test cannot determine if you are intoxicated or “high” at any specific time. It just determines whether you have recently used a drug. If given the choice between a blood or urine test, choose urine. In the last few years, most have switched to blood only.
After you provide breath, blood, urine or saliva, the DUI officer will likely serve a summons on you. Your prior record will determine whether you must post a bond to get out of jail. If this is an average DUI without priors, then you may be served the summons and released. Sometimes, if the police suspect a high BAC, they may place you in a detoxification center for the evening.
No Cop at DMV Hearing
If the State wants to suspend your driving privileges, then they must give you notice and the right to a hearing. This is often the most important portion of the case to the accused, because it determines if driving privileges will be suspended. Although this decision does not have to be made before consulting an attorney, it often is. So, I include it here.
Depending on what choice you make as you are arrested for DUI, your notice of revocation will be delivered immediately by the officer or after a few weeks in the mail. If you choose a breath test or refuse to take a test, this notice will be served on you immediately by the police officer. If you choose a blood or urine test, then the DMV will mail the notice.
Beware: The DMV is only required to mail to the address that you last gave to them. It is not a defense that you did not get notice because you moved and never corrected your address. This might allow you to have more time to request a hearing, but that is all. Meanwhile, your license will be suspended and driving could result in more charges, a mandatory 30 day jail sentence, a bond in the amount of $10,000.00 and an additional 12 month suspension of your license. If you are not certain that your address is current, then file an address change in person at your local DMV office.
You must request a hearing on the matter to challenge the evidence. These hearings can be won, so request a hearing. The request must be made in person at a DMV office. You have to request the hearing within 7 days of receiving the notice of suspension. If you do not request a hearing, your license to drive is suspended starting on the day provided in the notice. If you do request a hearing, your license will not be suspended until and unless you lose the hearing. Hearings are often set about 45 days from the date of the request. Failure to appear at the hearing results in the exact same suspension as if you never requested a hearing. Failure to appear will not result in a warrant, so you have nothing to lose by requesting the hearing and then changing your mind.
You should not request the presence of the officer. It is the very rare case where a DMV-HO (hearing officer) will look a DUI officer in the face and find for the accused. More importantly, without the officer, the DMV-HO can only use the DUI affidavit filed with the notice of revocation as evidence against you. Sometimes, the affidavit is missing a required portion of the DUI proof. This information can often be provided by the DUI officer, but only if s/he is present. Finally, if your attorney wants the officer present, s/he can subpoena the DUI officer a few days before the hearing.
Beware: Some DUI officers will suggest that if you request their presence, that they will not show up and that you will win. In my experience, this is a lie. They will show up and you will lose. I suspect that these officers do this so that your hearing is set at the same time and place as several other hearings that s/he has to attend, thereby making it easier for her/him to be at all the hearings.
The above is more information than you want to try to remember at a cocktail party, let alone try to teach someone. So take a sip of your social lubricant, stare your cocktail buddy right in the eye and say that s/he needs to remember just 5 things:
1. Do & Say as Little as Possible
2. No Roadsides
3. No PBT
4. If Arrested, Choose a Test
5. No Cop at DMV Hearing