Better Call Glew: A Driver's Guide to DUI Stops

What should I do if I get pulled over after one too many drinks?

The first thing an officer looks for during a traffic stop, are objective signs of intoxication (OSI's), including bloodshot watery red eyes, the odor of alcohol, thick or slurred speech, flushed face, fumbling with a wallet to get the driver's license, leaning on the car for support, unsteady gait, difficulty following directions, etc. Remember, every traffic stop is a potential DUI investigation in the mind of law enforcement officers, so they will look for anything to suggest a driver may be under the influence, thereby justifying further investigation.

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If an officer does observe OSI's, he or she will then ask a series of
questions, designed to create a drinking pattern, which will almost
certainly be used against the driver.  Further, the questions asked are
designed to produce evidence that incriminates.  Most people, under the
stress of the detention, tend to provide inaccurate information.  It is
completely understandable behavior, but to a prosecutor, it represents
consciousness of guilt.

Given the above, it is generally wise to invoke
your Fifth Amendment right to remain silent with respect to any
questions posed by law enforcement officers during a DUI investigation;
all the information a driver MUST give the officer is contained on your
Driver's License. The next step in a DUI investigation is the
administration of field sobriety tests (FST's). These may include
walk-and-turn, touch-the-nose, one-leg-stand, modified position of
attention (the Rohmberg Test), horizontal gaze nystagmus (following an
object like a pen from side-to-side with your eyes, while keeping your
head still), fingers-to-thumb and hand pat.

The only purpose of these
tests is to allow law enforcement to collect more evidence to convict
you. There is no legal requirement to perform such tests, and without
such evidence, the job of the prosecutor becomes more difficult. Many
police agencies are using a roadside breath-testing device
(Breathalyzer) as an additional field sobriety test. The Preliminary
Alcohol Screening (PAS) units are hand-held devices that are supposed to
provide a crude indication of the suspect's BAC. These units are
designed to aid the officer in making a probable cause determination as
to whether the subject is intoxicated.

However, if a subject burps,
belches, vomits, or regurgitates within 15 minutes prior to the
administration of the test, the result will be grossly inaccurate and
inflated. Unlike the evidential chemical test, which will be discussed
below, there is no legal obligation, on the part of the driver, to take a
PAS screening test unless it is administered after arrest. The only
purpose of this test is to gather evidence to support the officer's
probable cause determination.

The final step in a DUI investigation
is the evidential chemical test. Drivers are required to take this test
under California's Implied Consent law. That means, if you are driving
on California roads, you are implicitly consenting to chemical testing,
if a law enforcement officer has probable cause to believe you are
DUI. If you refuse to take this test, you will be arrested for DUI, and
if you are convicted, you will face much harsher penalties.

The
evidential chemical test test involves a choice of breath or blood. There are a number of different brands of breath machines used in
California, but all are vulnerable to numerous problems and none of them
can be relied upon as accurate. For one thing, the computer in the
Breathalyzer makes many assumptions. For example, it assumes the person
being tested has “average” physiology and metabolism, when in fact,
physiology and metabolism varies greatly from individual to individual.

Further, evidential Breathalyzers are subject to the same inflated
results if a subject burps, belches, vomits, or regurgitates 15 minutes
prior to the test.  Blood analysis is far more accurate, although other
potential problems exist, such as fermentation or coagulation of the
sample, and lack of sterilization during the blood draw. However, the
advantage of a blood sample is that a defendant is able to obtain a
split of the sample for independent testing.

While the above is a
thumbnail sketch of a very complex and nuanced area of law, should you
ever find yourself the subject of a DUI investigation, it may
nonetheless be helpful to you.  What will prove even more helpful, is
hiring an attorney to zealously defend your case.

Email questions to gl********@gm***.com. And remember, Better Call Glew!

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