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If I’ve Been Drinking, What do I do if I get pulled over?

July 22, 2011

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As a DUI defense lawyer, I get asked that question more than any other question. Over the past 15 years I have tried to verdict literally hundreds of drunk driving defense cases. And that question, when people find out what I do for the a living that is the question that I am most often asked, whether it be in a social setting or at the soccer field or at the hockey rink, people wanna know “If I’ve been drinking, what do I do if I get pulled over.” And I think the only way for me to fairly and accurately describe what I think you should do is tell you what I would do if I were in that position.

If I had been pulled over by a police officer after having had something to drink I know from experience the officer’s going to activate the blue lights, perform a motor vehicle stop and pull me over. I’m going to roll down my window and I’m going to give that police officer my license and registration when he asks for it because I am required to identify myself and provide the registration for my motor vehicle. In all likelihood, the officer, if he assumes or thinks that I’ve had something to drink is certainly going to question or ask me whether I’ve been drinking. My response to that question and any other question at that point is, I will ask the officer, “Am I free to leave? Can I leave?” And his response to me is going to be “No.” He’s holding my license, he’s holding my registration, he’s not going to let me go anywhere. Therefore, I’m not going to be answering any questions.

Now a trained police officer may take offense at the fact that you’re exercising your right to remain silent, but you absolutely have the right to say to him “I don’t wanna answer any questions.” At that point, if his suspicions have been raised and they certainly will at this point, he’s gonna ask you, “Step from the vehicle I want you to participate in field sobriety testing.” If I were asked to participate in field sobriety test, my response to that officer would be “No, I’m not taking field sobriety test.” The officer’s not required to tell you, and this is true in Massachusetts and New Hampshire, he’s not required to tell you that you have the right to refuse field sobriety tests. And these tests are the horizontal gaze and stagnus, the one legged stand where you elevate one foot off the ground for 30 seconds, the walk and turn where you’re required to walk nine steps up nine steps back. I am certified and trained in those tests, I took the same training course as the police officers took, I am familiar with those tests from both experience and the number of cases I’ve handled.

Under the scrutiny of the police, the cruiser lights, the spotlights, the take downs, the break down lane, the traffic, and the nervousness and the fear and the embarrassment that goes with being placed in that situation, I believe those tests are designed to fail. Most people are going to have a very difficult time with those tests regardless of whether they’ve had anything to drink. Exercise your right to refuse those tests. Again, the officer’s probably going to take offense at the fact that you’ve exercised your right to refuse the test but the refusal of those tests in Massachusetts is not admissible against you in a court room, meaning the officer doesn’t get to stand up in front of a judge or jury, months later, and say “I asked Mr. Bowser to take the field sobriety tests and he wouldn’t.” He doesn’t get to testify to that issue. In New Hampshire, he would. He’s then gonna ask you to step from the vehicle because he’s gonna want to place you under arrest. And at that point you have to be cooperative, polite, don’t give that officer a hard time their job is difficult enough as it is, and you’re gonna be placed in custody.

So, when you’re placed in custody you’re handcuffed, you’re transported to the station, exercise your right and continue to exercise your right to remain silent. Don’t make statements, don’t be chatty, don’t be talkative. Anything that you say to that police officer is going to make it’s way into a police report, and whether you think it’s gonna hurt you or not, they are trained to elicit the statements that can be used against you and they will. When you get to the station, you’re going to be asked to take either a blood, breath or urine test.

In both Massachusetts and New Hampshire they have an implied consent statute, that just means that it’s implied that if your arrested for DUI you will take a chemical test. You have the right in both states to say, “No.” The refusal of those tests comes with consequences, and the consequences in Massachusetts can be a suspension of your driver’s license anywhere from 180 days up to life. Depending on what your prior record is. Again, I would not advise anyone to take a chemical test. Based on what I know about the technology, the physiology of alcohol, absorption, elimination, how the machine’s work. If you take that test and you register over the legal limit, that is gonna be the strongest piece of evidence the government can use against you and those tests are not fail safe they are not perfect. In New Hampshire you also have a right to refuse. If you take the test and you register over the limit it’s 180 days up to a 2 year suspension. It’s the exact same suspension if you refuse based on your prior record it could be 180 days or a 2 year suspension.

Again, my advice would be if it were me, and I were in that position, I would not take a chemical test, but you do need to realize there are legal ramifications to that. The only way to avoid that suspension based on a refusal in Massachusetts is a not guilty verdict or an acquittal. If you have participated in field sobriety tests and you have taken a breath or blood test, the ability for your defense lawyer to obtain an acquittal or dismissal of your charge becomes more difficult. You do not want to give the government the evidence that they’re going to use against you in a court room.

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