DUI FAQs

Frequently asked questions regarding what to do when stopped for DUI

Question:

What should I do when I am stopped?

Answer:

First, stay calm and think rationally. Next, don't forget that police officers keep our streets safe by doing their job and should be appreciated. However, when an officer accuses someone of drunk driving, it is merely the officer's opinion that they are driving under the influence. His or her opinion can be influenced by any number of factors including human error and your manners. Therefore, it is imperative that you are polite. The easiest way to find yourself in a confrontation leading to an arrest is to be blatantly rude.

What should I do when the officer turns on his police car lights behind me?

Carefully move over into the right lane and then onto the shoulder of the road or into a parking lot where you can safely stop your car. Turn off the engine and the radio. Maintaining control and obliging the officer's request will point away from any mental impairments, such as intoxication.

Question:

What should I do next?

Answer:

Be sure that your license, registration and proof of insurance are handy. Get them ready as the officer approaches your car.

In order for a police officer to stop you, there must be what's called "probable cause" or some reason for the stop communicated to you. It is usually a simple traffic violation such as speeding or having a taillight out that causes the stop. It is onward from here that DUI charges occur if the officer believes that the driver is intoxicated. In order for it to be considered probable that a crime has been or is being committed, the officer must have evidence. However, the evidence he needs for a legitimate stop is only probable cause, and does not have to meet the "beyond a reasonable doubt" standard. Beyond a reasonable doubt refers to the standard of proof that the state must bring against you at trial, that you were intoxicated to a level that made you incapable of driving safely, and that you were operating or attempting to operate a vehicle.

If an officer arrests a person on less evidence than "probable cause", he violates that person's constitutional rights not to be unreasonably seized. In that case, any evidence obtained would be inadmissible from the prosecution's case.

Question:

What do police officers look for when searching for drunk drivers on the highways?

Answer:

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Administration:

• Turning with a wide radius
• Straddling center of lane marker
• "Appearing to be drunk"
• Almost striking object or vehicle
• Weaving
• Driving on other than designated highway
• Swerving
• Speed more than 10 mph below limit
• Stopping without cause in traffic lane
• Following too closely
• Drifting
• Tires on center or lane marker
• Braking erratically
• Driving into opposing or crossing traffic
• Signaling inconsistent with driving actions
• Slow response to traffic signals
• Stopping inappropriately (other than in lane)
• Turning abruptly or illegally
• Accelerating or decelerating rapidly
• Headlights off

Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety.

Question:

If I'm stopped by a police officer and he asks me if I've been drinking, what should I say?

Answer:

You are not required to answer potentially incriminating questions. A polite "I would like to speak with an attorney before I answer any questions" is a good reply. On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication—and it may explain the odor of alcohol on the breath.

Question:

If I am asked if I have had any alcoholic beverages, should I say yes?

Answer:

Generally, alcohol can be smelled, so even if you have had just one drink, admit to it. This honesty right up front will make the officer more likely to listen to you. Besides, if alcohol is detectable, denying that you have had anything to drink makes you less credible. However, anything you say will be used against you, so you can always reserve the right to not say anything.

Question:

If asked, should I be truthful about how many I have had, and over how long of a time period?

Answer:

It depends. If you admit to having any more than two drinks, it is likely that you will be arrested for DUI. It gets especially difficult to assess whether or not you are intoxicated when the officer does not consider how long it took you to have those 3 drinks, per se. Consuming three drinks in 45 minutes is much different than three drinks over an entire afternoon.

An option is always to simply not answer the questions at all. I have certainly enjoyed winning DUI trials because the State had little evidence due to my client not saying anything or participating in anything when they were stopped and arrested. Unfortunately, sometimes, non-intoxicated people have been arrested and made to pay a substantial quantity of money for bond, automobile towing, and attorney's fees to mention a few, just to clear their names.

Question:

What should I do if I am not going to answer?

Answer:

The Fifth Amendment to the Constitution affords you the right not to incriminate yourself. Kindly ask the officer why you were stopped and whether or not you are under arrest. If you are, you have the right to see an attorney before answering any other questions. Let the officer know that you would like to do that before he or she questions you anymore. If you are asked to take a field sobriety test, mention again that you would like to be advised by your lawyer on if that is a good idea or not. You are not refusing or agreeing to take one, you'd just rather keep all of your bases covered with counsel first. However, if you are told to get out of your car, you must oblige.

If the officer says that you are not under arrest, then ask if you are going to be given a traffic ticket, and if you will be allowed to leave afterwards. If the officer says yes, continue to be courteous and quiet. Do not volunteer any information of any kind. If he asks about your consumption of alcohol again, kindly tell him that you choose not to answer any other questions besides those regarding the traffic offense you are being stopped for.

In the event the officer tells you that you are not under arrest but cannot leave, the best thing to do is to inform the officer of your desire to obtain the advice of an attorney before answering any more questions. Don't forget to be polite. By doing this, you have caused the officer to make a choice: either he must now choose to let you go or to wait for you to contact a lawyer, in effect, extending his investigation at the scene. If he lets you go, drive cautiously away.

Most likely, the officer will ask you to take a PBT. This is a breath test which measures your alcohol level. This test is not admissible in court. If you do not take it, the officer will then arrest you and most likely issue you a ticket. If you do take it, the officer will most likely issue you a DUI if you blow at .08 or greater. Also note that in Kansas you do not have a right to an attorney regarding this test.

If he prolongs the investigation, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. By remaining silent and waiting for a lawyer to be present, you make it more difficult for the officer to reasonably seize you. In other words, it is not considered an admission of guilt to use your constitutional right not to self incriminate. But again, the officer will most likely rely on the PBT.

In any event, if and when you find yourself in the classic DUI situation (where you're being held for a DUI/DWI investigation but you're not yet arrested) it is best to be polite. You should invoke your right to remain silent. This way, you are letting the officer do the best he can with the evidence he can legally find.

Question:

What is the officer looking for during the initial detention at the scene?

Answer:

The traditional symptoms of intoxication taught at the police academies are:

• Flushed face
• Red, watery, glassy and/or bloodshot eyes
• Odor of alcohol on breath
• Slurred speech
• Fumbling with wallet trying to get license
• Failure to comprehend the officer's questions
• Staggering when exiting vehicle
• Swaying/instability on feet
• Leaning on car for support
• Combative, argumentative, jovial or other "inappropriate" attitude
• Soiled, rumpled, disorderly clothing
• Stumbling while walking
• Disorientation as to time and place
• Inability to follow directions

Question:

What should I do if I'm asked to take field sobriety tests?

Answer:

There are a wide range of field sobriety tests (FSTs), including heel-to-toe, finger-to-nose, one-leg stand, horizontal gaze nystagmus, alphabet recitation, modified position of attention (Rhomberg), fingers-to-thumb, hand pat, etc. Most officers will use a set battery of three to five such tests.

Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs. The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence which the suspect inevitably "fails". Thus, in most cases a polite refusal may be appropriate.

You will most likely be asked to perform the federally-approved (National Highway Traffic Safety Administration) "standardized" field sobriety tests. These consist of a battery of three tests:

• Heel-to-Toe (also referred to as "walk-and-turn")
• One-Leg Stand
• Horizontal Gaze Nystagmus

All other field sobriety tests are disapproved. And unlike non-standardized tests, in which the officer subjectively decides whether the suspect passes or fails, the SFSTs are scored objectively - that is, a numerical score is assigned according to specific errors, or "clues".

Question:

Why did the officer make me follow a penlight with my eyes to the left and right?

Answer:

This is the "horizontal gaze nystagmus" test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk ("nystagmus" is medical jargon for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye's tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.

This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer's ability to recognize nystagmus and estimate the angle of onset. Because of this and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.

Question:

What is the field sobriety test?

Answer:

The standard sobriety test is issued by the police officer who pulled you over. It includes:

1. the horizontal gaze nystagmous (HGN) test;
2. the one-leg stand test;
3. the walk and turn test.

According to the researchers from the National Highway and Traffic Safety Administration who developed these tests, someone who fails the tests has an alcohol concentration of greater than .08. These tests are still debated as to their accuracy and validity. Some of these tests are not even admissible at trial.

If I am arrested and brought to the police station, should I do any of the sobriety tests in front of a video camera, which includes the Intoxilyzer and answering more questions?

First, inform the officer, and all officers you come into contact with, that you want to remain silent and not incriminate yourself until you can contact a lawyer and have a private consultation with him regarding the things the officers will ask you and ask you to do. Remind the officers that you are neither refusing nor agreeing to cooperate, but that your decision to do the tests and answer the questions depends upon the advice you receive from your attorney.

Sometimes you may be told "you can't have an attorney yet". This may or may not be a valid statement depending on the conditions of your case, but, you won't know that until you are allowed to speak with a lawyer. The best thing to do is to remain very polite but still firm in your desire to speak to an attorney. When the police let you the use the telephone, immediately use it and call any lawyer you know. When you reach an attorney, be sure that you can speak to him in private, otherwise, the attorney-client privilege is breached and the officer is violating your right to an attorney.

In regard to the intoxilyzer test, it is difficult deciding whether or not to take it. The Breathalyzer is the test given at the station which tests the alcohol level on your breath. It has been known to be unreliable. In addition, it is impossible to preserve the breath sample, which proves your guilt or innocence. It is difficult to advise you to take a test that cannot be performed again or evaluated again in order to prove it's validity a second or third time, if necessary. Furthermore, the results of this test ARE admissible in trial against you. On the other hand, if you don't take the test, the jury may make their own inferences. This, however, might be explainable by your apprehension or disbelief in the test. Also, there are more stringent penalties on your driver's license suspension if you refuse to take the Intoxilyzer.

Question:

Should I agree to take a chemical test? What happens if I don't?

Answer:

The consequences of refusing to submit to a blood, breath or urine test varies according to which DUI this is for you. Generally, there are three adverse results:

Your driver's license will be suspended for at least a year. This may be true even if you are found not guilty of the DUI charge;

The fact of refusal may be introduced into evidence at trial. Of course, the defense is free to offer other reasons for the refusal. In our opinion, it is easier to win a DUI trial if there was a refusal, as compared to a scientific reading of alcohol in your system which is over the limit.

Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

Question:

Do I have a choice of chemical tests? Which should I choose?

Answer:

In Kansas, the officer has some discretion to offer you a breath, blood or urine test. However, they generally only offer the breath test. There are possible Constitutional and Statutory issues if they ask for a UA instead of a breath test. It is important to understand, analysis of a blood sample is potentially the most accurate. Breath machines are susceptible to a number of problems rendering them often unreliable. The least accurate by far, however, is urinalysis. Thus, if you are confident that you are sober, specifically request the officer to do a blood sample, because it is the most accurate. However, if you think you have a high level of alcohol in your system, a UA is the least accurate and most easily impeached, and so is the best option if you believe your blood-alcohol concentration is above the legal limit. But again, the officer generally only gives you one option, a breath test.

Question:

The officer never gave me a "Miranda" warning: Can I get my case dismissed?

Answer:

No. The officer is supposed to give a 5th Amendment warning after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest. Furthermore, the officer will often say you were not yet under arrest and that he was merely investigating. In this case, your statements before arrest will be admissible.

Question:

The officer took my license and served me with a notice of suspension, a pink sheet in Kansas, after the breath test: How can he do that if I'm presumed innocent?

Answer:

Agreed, it is blatantly unfair. But the law in most states (including Kansas) having a "per se" statute provides for immediate suspension and confiscation of the license if the breath test result is above the legal limit or if you refuse to take the test.

NOTE: You only have 10 days in Kansas to request an administrative hearing in order to keep your license from being automatically suspended.

Question:

Can I represent myself? What can a lawyer do for me?

Answer:

You can represent yourself—although it is not a good idea. "Drunk driving" is a very complex field with increasingly harsh consequences. There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.

And be careful, because an attorney can mess everything up for you. DUI law is a highly complex field and requires an experienced DUI lawyer to accurately review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, have blood samples independently analyzed, negotiate for a plea, obtain expert witnesses for trial, contest the administrative license suspension, etc.

Question:

How can I find a qualified drunk driving attorneyr?

Answer:

Research them. Interview them. Have they ever won a DUI trial? Have they ever successfully got evidence suppressed? Are they a trial lawyer or just a plea lawyer?

Contrary to popular belief, it is not a wise idea to obtain a referral from the local Bar association or referral service. When you call, you are simply given the next name on that list.

Caution: Beware of lawyers who simply refer you to other "top DUI lawyers" and who then receive a referral fee from those lawyers.

Question:

What will it cost to get a lawyer?

Answer:

This varies, of course, by the reputation and experience of the lawyer. Generally, the more skilled the attorney, the higher the fee. A related factor is the amount of time a lawyer devotes to his cases: the better lawyers take fewer clients, spending more hours on each.

The range of fees is huge. A general practitioner may charge only $500-1000 for a first time DUI; an experienced DUI attorney may charge up to $25,000 or more, depending on the facts. In addition, the fee may vary by such other factors as:

• Is the offense a misdemeanor or felony?
• If prior convictions are alleged, the procedures for attacking them may add to the cost.
• The fee may or may not include trial or appeals.
• Administrative license suspension procedures may also be extra.
• The lawyer may charge a comprehensive fixed fee, or he may ask for a retainer in advance—to be applied against hourly charges.
• Costs such as expert witness fees, independent blood analysis, service of subpoenas, etc., may be extra.

Whatever the fee quoted, you should ask for a written agreement. And make sure you understand all the terms.

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