Charged with a DUI?
Obviously, the best way to avoid the possibility of getting a DUI is to not drink and drive. However, drinking and driving alone is not illegal. It is the operation of a motor vehicle “while under the influence of alcohol” that is unlawful. https://vacode.org/18.2-266/. In Virginia, as in every other state, a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test is sufficient to establish that you are “under the influence of alcohol.”
If you are pulled over for any reason and the officer voices a suspicion that you may be under the influence, it is important to keep some basic things in mind:
First and foremost, BE POLITE AND COURTEOUS TO THE OFFICER. We tell you this not only because it is good manners, but because hostility or belligerence can actually be used as evidence in court that you are impaired! An argumentative demeanor or even a “disheveled appearance” are among the most frequently cited observations used against individuals suspected of DUI.
Second, it is important to understand what you do and do not have to do when involved in any traffic stop. The officer does have the right to ask for your license and registration. Pursuant to a 1977 United States Supreme Court decision, the officer also has the right to demand that you exit your vehicle. See, Pennyslvania v. Mimms, https://supreme.justia.com/cases/federal/us/434/106/case.html.
However, there are a number of things that you do NOT have to do. Other than provide your name and other basic identifying information, you do not have to make statements or otherwise answer questions posed by police officers. In the context of a suspected DUI stop, this means you do not have to tell the officer where you were prior to driving, whether you were drinking or how much you have had to drink, or if you had knowledge of any other suspected traffic violation (such as speeding or a broken taillight). In addition to the obvious risk of incriminating yourself with your statements, it is also dangerous to be too chatty with the officer as officers often reference a “strong odor of alcohol” and “slurred speech” as evidence supporting a DUI arrest. The more you talk, the greater the opportunity for an officer to allege your speech is “slurred” or that you are giving off an odor of alcohol. The best advice is to keep your mouth shut, both literally and figuratively.
The officer will likely ask that you perform field sobriety tests. These tests are designed to measure signs of physical impairment by alcohol or other substances. Though the officer will not tell you this, YOU ARE NOT REQUIRED TO DO THESE TESTS! You can simply inform the officer that you do not wish to perform the tests and leave it at that. Slight missteps, or even failure to understand the instructions, can lead an officer to conclude that there is probable cause to place you under arrest for DUI.
Similarly, the officer will likely ask to perform a preliminary breath test. It is important to keep in mind that there is a difference between the preliminary breath test offered at the scene and the breath test offered after someone has already been arrested for suspicion of driving under the influence. YOU DO NOT HAVE TO TAKE THE PRELIMINARY BREATH TEST AT THE SCENE. In fact, the officer is required to read you the law that says you have the right to refuse the preliminary breath test and that the results of the preliminary breath test are not admissible in court. https://vacode.org/18.2-267/. For various reasons too complicated to list here, the preliminary breath test is not reliable enough to pass muster in court, but it is considered reliable enough to be used to establish probable cause to arrest you for DUI. The preliminary breath test alone can justify a DUI arrest—a fact you should think about very carefully before agreeing to take it.
This is just a brief overview of the issues that emerge during a DUI stop. Even though you will naturally be nervous during such an encounter, it is important to exercise your right to remain silent and to refrain from providing evidence against yourself. If you or a friend or family member have been charged with DUI or another traffic or criminal offense, contact Goff Voltin today. Our attorneys are highly experienced in DUI law and are available to provide diligent, aggressive representation. Call today for a free consultation.