When you see a police car’s flashing lights in your rearview mirror, your first thought is probably something like “I hope they’re not after me.” But when it becomes clear that your vehicle is indeed the one that the officer is motioning over to the side of the road, you may start to panic—especially if you’ve spent the last few hours in the company of friends and have enjoyed an alcoholic beverage during that time.
Your behavior during the traffic stop and in the hours immediately following that stop could have a significant impact on your life, affecting everything from your ability to drive to your bank account. Follow these guidelines to ensure that you are taking every possible step to protect your rights and your future.
When the officer motions you over:
• Follow the officer’s directions as soon as you safely can. If you have to pull over to the side of the road, make it as far away from the traffic lanes as you can (without pulling onto the grass). If there’s a nearby parking lot, that is sometimes a better route since it gets you out of most traffic.
• Don’t get out of the car. Wait for the officer to come to your car and speak to you. While you may be worried about a DUI charge, the officer may have pulled you over because he/she noticed that you have a brake light out. If the officer asks “Do you know why I pulled you over?” your best response is “No, officer.”
Don’t volunteer any information, don’t ask questions at this point. Just wait for the officer to tell you why you’ve been stopped.
• Don’t go searching for your license, registration and insurance information until you are asked to provide them. If you’re rooting around in your glove compartment or some other place in your vehicle, the officer may wonder if you’re looking for a weapon to use on him/her. After the officer requests these documents, you can tell him/her “I keep them in my glove compartment, and I’m going to get them out now.” (Make sure that you do keep these documents easily accessible.)
• Remember that you don’t have to answer questions that the officer asks about your recent activities.
If the officer wants to know whether or not you’ve been drinking alcohol, you can just calmly and politely say, “I’ve been advised not to answer questions in this situation, Officer.” The 5th amendment does give you the right to protect yourself against self-incrimination.
Don’t volunteer information that you’ve been out with friends or at the ballgame or wherever you’ve been; they may assume that you have drunk alcohol during that time.
• You don’t have to consent to a search of your vehicle if the officer asks, but if he/she has probable cause to believe that you’ve committed a crime (such as DUI) the officer may search your car without a warrant.
When the officer wants to administer tests:
• You can refuse a field sobriety test. There is no law in California that makes it mandatory for you to take a field sobriety test. While you should get out of the car if the officer asks you to, you do not have to walk in a straight line putting one foot in front of another or perform any other of the physical tests that they might use.
The problem with physical coordination tests is that there is no objective way to measure your performance on them. The officer makes a subjective judgment on whether or not you walked a straight line or performed as you should. Even if you haven’t had anything to drink, there could be many other factors that negatively affect your performance on these tests. You may have some kind of inner ear problem that makes it hard to balance. The road may be uneven with holes and or gravel underfoot. Headlights from other cars could be shining in your eyes. The wind may be blowing hard enough to push you off balance.
• You can refuse an initial breathalyzer test. The police officer may ask you to blow into a breathalyzer before he/she mentions an arrest. While you may have heard that you can lose your license if you refuse to take a breathalyzer test, that’s not the case for most drivers. Under California law, only drivers under 21 or those previously convicted of DUI must take this Preliminary Alcohol Screening (PAS).
• Whatever else you do, remain courteous. No matter how well versed you think you are in the law and in what police officers are permitted and are not permitted to do when they make a traffic stop, this is not the time to be belligerent or aggressive. Follow all of the officer’s directions while politely maintaining your right to remain silent.
If the officer arrests you on suspicion of DUI:
• You’ll be taken to a police station, a hospital or some other venue where the authorities will ask you to undergo a screening test to measure your blood alcohol content. This is usually a breathalyzer test or a blood test, and in rare cases a urine test. Under most circumstances, you can request whichever you want, but if your choice isn’t available, you’ll still have to undergo the test.
There are pros and cons to each type of test. Breathalyzer tests are often inaccurate and the lab can’t store your breath sample, so they may be easier to challenge in court. Blood samples do last, so your attorney could get an independent lab to verify the initial BAC results. But blood tests are also more accurate and harder to challenge in court.
• Refusing to take a BAC test (breathalyzer or blood test) after you’ve been arrested will make your penalties more severe if the courts do convict you of DUI. You could face additional fines and longer license suspensions.
• The police officer will take your driver’s license and will issue you a temporary 30-day license. Unless you appeal your license suspension to the DMV you will automatically lose your license for a period of time dictated under the law. You must file an appeal to the DMV within 10 days of your arrest.
At the police station:
• After you’ve completed processing and paperwork, the police can release you or put you in a cell until you’ve paid bail or gone before a judge for an arraignment on a DUI charge. The exact process varies by jurisdiction.
• If you must remain in jail, you do have the right to make phone calls to contact family members and/or an attorney.
• At the arraignment, you can enter your plea of guilty, not guilty and sometimes no contest to the charge. You can benefit from the advice of an attorney experienced in DUI at this point; you can also ask the judge for a postponement of your hearing so that you can hire an attorney. An experienced DUI attorney will be able to counsel you on your best course of action and often can negotiate the charges against you to a lesser charge, especially if it is a first offense.
Throughout the entire process:
• Make mental notes on everything that the police officer does (or does not do) during the traffic stop and the subsequent proceedings at the police station and/or laboratory. Officers make procedural errors every day that violate your rights or they may skip steps that they are supposed to be taking in during the stop and subsequent arrest. (Did you know, for example, that the officer is supposed to observe you closely for 15 minutes before administering a breathalyzer test?) These missed procedures could be grounds for getting your case dismissed, so write down everything that you remember at the first possible opportunity.