By: Kirk D. Smith, Esq.
The yuletide season is upon us with its parties, gatherings, and overall festive atmosphere. Along with all this frivolity is the increased chance that if you consume alcohol and choose to drive, you could be pulled over for a DUI. The best decision you can make before you start to drink is to have a designated driver or plan to call a taxi and let someone else do the driving. There are many who drink and don’t feel as though they are the least bit impaired and make the mistake of driving themselves. This article will provide some insights for the holiday partygoer so that they don’t contribute to the evidence against them when they are pulled over and being investigated for a DUI. As an experienced criminal defense attorney in Arizona who has handled many DUI cases, it has become apparent that most motorists do not know their rights or how to react when first pulled over for a DUI.
Paperwork
Make sure your insurance and registration are on the top of the stack of paperwork in your glove compartment before going out. This way this information will be readily available at your fingertips when you are asked for it. Many times when you fumble around in your car looking for this paperwork, the investigating officer uses your seemingly “impaired” search for these materials as evidence of your intoxication. On the same note make sure your driver’s license can be easily retrieved.
Initial Stop-Attitude
Not all traffic offenses indicate impairment from alcohol use. For example if you are pulled over for speeding or a “rolling stop.” These offenses by themselves are often committed by non-drinking motorists. Therefore an investigating officer will try to gather more information with respect to your alcohol consumption and impairment after the stop to substantiate your arrest. How you handle yourself after the stop will increase or decrease the amount of evidence that is gathered against you for DUI. Therefore don’t panic solely because you’ve been pulled over, rather, remain calm and your speech and actions are less likely to be construed as signs of intoxication.
Responses to Questions
Investigating officers often take advantage of motorists’ belief that they must answer all questions posed by an officer because they are figures of authority. A police officer who pulls over a motorist can ask for your license, registration, and insurance if they have a valid reason for the stop which is usually a traffic violation. An officer can ask a driver to step outside a vehicle for various reasons as well. These things aside a motorist does not have to answer questions from an investigating officer as to where they have been, what they have consumed, or where they are headed. If you are aware that an investigating officer is conducting a DUI investigation you may tell them when they start asking probing questions into your evening that you will provide them with your license, registration, and insurance card, however, you do not wish to answer further questions.
Law Regarding DUI Tests
An Arizona driver’s license is a privilege not a right. As a condition of having an Arizona license each motorist subjects themselves to Arizona Revised Statutes § 28-1321 which states;
A. A person who operates a motor vehicle in this state gives consent...to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of...( the DUI laws), while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state either:
1. While under the influence of intoxicating liquor or drugs.
2. If the person is under twenty-one years of age, with spirituous liquor in the person's body.
B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months, unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal...
If you refuse to provide a “blood, breath, or other bodily substance” sample for testing after being arrested for DUI then your license will be suspended for 1 year because of the refusal.
Sometimes when a DUI investigation first begins, an officer will request you breathe into a portable breath testing device. If an officer asks you to provide a test sample for their PBT which means portable breath test, you do not have to provide it. A portable breath test is not one of the tests suggested by Arizona Revised Statutes § 28-1321 such as an Intoxilyzer test, a blood draw, or urine sample.
A PBT is a small device that can be held in your hand and is a less accurate way to measure the alcohol content in someone’s breath when compared to any of the other aforementioned testing procedures. The Intoxilyzer device for example is a much larger and more accurate machine to determine someone’s breath alcohol content. Many times an Officer will use a PBT reading as part of their basis for the DUI arrest, then take the suspect to a mobile van or the police station,where an actual Intoxilyzer machine, or blood draw will occur, for use as the pivotal reading that will be used latter in Court. Different smaller designs have been developed for the Intoxilyzer machines, therefore, make sure if you are providing a breath sample it is being taken by an intoxilyzer machine rather then a PBT.
As mentioned above, a motorist should provide an investigating officer their license, registration, and insurance, but nothing more. However, unless a motorist wishes to have their license taken for 12 months a motorist should tell the investigating officer that they will provide a breath, blood, or urine sample to them. Once again the motorist should not provide a PBT reading for the investigating officer.
If you refuse to provide a breath, blood, or urine sample after being arrested, your license will be suspended for a year. However, by not agreeing to provide it, the investigating officer usually is able to obtain the evidence anyway. Many times after a motorist refuses to provide a breath, blood, or urine sample, the investigating officer will get a telephonic warrant from a judge and the officer will acquire the sample despite the refusal of the motorist. Therefore the motorist might as well provide the sample and not lose his license for the year because refusing to provide the sample usually does not prevent its acquisition by law enforcement.
Field Sobriety Tests
Field sobriety tests are physical examinations an investigating officer performs on a stopped motorist in the field wherein the investigating officer asks the motorist to perform various physical activities to evaluate the motorist’s impairment from alcohol. Do not ever agree to take field sobriety tests under any circumstances. Do not think the investigating officer will be impressed by your performance of them and let you go. One specific field sobriety test is the horizontal gaze nystagmus test. In this test the investigating officer takes a pen or other item and examines how a motorist’s eyes move while they are tracking the pen or other item as it crosses the front and sides of the motorist’s face.
Sometimes even after a motorist has declined to take any tests an investigating officer may still try to attempt a horizontal gaze nystagmus test on the motorist because it can be done very quickly and without having to provide the motorist with much instruction.
Do not let the officer perform the horizontal gaze nystagmus test upon you or any other test other than providing the officer with a breath, blood, or urine sample as requested by that investigating officer after arrest.
Common Sense
Do officers ever give someone a break and let them go after knowing the person had something to drink? Of course an example of it occurring has never been formally documented, but like anybody else in life an officer is a human being, therefore I’m sure it has happened at some point. No one can give advice as to when an officer might be inclined to “cut someone a break,” however, for the most part if you believe a DUI investigation is going forward stick to your guns and don’t allow an officer to gather more information than is legally required. For the most part don’t count on the good will of the officer to let you go because of your particular circumstances if you believe a DUI investigation has commenced.
Conclusion
The quickest way to extinguish your holiday spirit is to get a DUI. A DUI conviction has mandatory jail, fines, license consequences, and other penalties, not to mention the stigma attached to it when someone reads your criminal history. The above “insights” should help slow down the evidence gathering ability of an investigating officer, which in turn, may affect the outcome of a DUI case. Nonetheless each individual should consult an experienced attorney to discuss the details of their specific case, as each case presents its own legal and factual obstacles.
Kirk Smith is a Criminal Law attorney at Davis Miles, PLLC. If you have recieved a DUI, call our office. Mr. Smith and his team are prepared to help you navigate your case. Call Today.