(This article was originally published 3 years ago).
When stopped by a police officer for suspicion of DUI the first things you should consider are simple. First, pull over as soon as it is safe; remember to be polite and respectful. Be prepared to produce your driver license and registration; most DUI officers consider difficulty in producing those documents as a clue that the driver is impaired.
Be careful what you say
The officer may ask you if you have been drinking; consider your answer carefully. If you have in fact been drinking, it is highly likely that the officer will smell the odor of alcohol on your breath; if you deny drinking you will lose all credibility with the officer and later, if your case goes to trial, and you admit that you in fact had consumed alcohol, you will have to acknowledge to the jury that you lied to the police officer. Keep in mind that asking if you’ve been drinking, is not the same as asking you how much you’ve had to drink. You should not volunteer that information to the officer. Remember he is conducting a criminal investigation; this is not the time for chitchat.
Field Sobriety Exercises – should you do them?
The officer is likely to ask you to step out of the vehicle and perform Field Sobriety Exercises (FSEs). Getting out of the vehicle may be of some significance; officers often look to see if you use the vehicle for support when exiting and will note that in his report as a clue of impairment. Whether or not to perform FSEs is a difficult question. If you elect not to perform such exercises, you will be giving the officer and ultimately the prosecutor very little evidence with which to obtain a conviction. Obviously, this is helpful. On the other hand, it is highly likely that your refusal to perform FSEs will be admitted at trial and the prosecutor will argue to a jury that this is evidence of your guilt. Additionally, if you refuse to perform FSEs it is nearly certain that the officer will arrest you.
What should you do if you agree to do FSEs?
In performing FSEs the first thing you must do is to listen carefully to the officer’s instructions. Any deviation from his instructions will be seen as a clue of impairment. His instructions however, are likely to be somewhat confusing. The first thing he will tell you is to stand with one foot in front of the other, with the heel of one foot touching the toe of the other foot. You are to stand in that position while listening to his instructions with your arms by your side. This is in an uncomfortable position to maintain and you’re likely to want to change to a more natural and comfortable position; however if you do so, the officer is likely to say that you failed to follow instructions or had difficulty maintaining your balance.
Do not begin any exercise until told to do so
It is human nature in a situation like this to be eager to show your ability to do what you’re being asked and, as a result, you are likely to attempt to begin the exercises before the officer instructs you to do so. This is confounded by the fact that the officer is likely to pause his instructions in a way that may lead you to think that he is done instructing you. Be careful; do not begin the exercise until he explicitly instructs you to do so. If you begin before he instructs you to do so, he will note that as a clue of impairment.
Remember, it’s all on video
Generally, DUI investigations, particularly the performance of FSEs are videotaped; as a result you must be mindful of everything you do and say.
What to do if the officer reads you your constitutional rights — do you answer?
Generally, it is better to decline to answer officer’s questions and assert your right to counsel. This is especially true if answering the officer’s questions means admitting to drinking alcoholic beverages or providing him with additional details such as how much you had to drink, when and where.
Whether or not to submit a breathalyzer test may be the most important decision you make in the course of a DUI investigation and under Florida law, a citizen arrested for DUI does not have the right to consult with an attorney prior to making that decision. Breathalyzer results are powerful evidence. A refusal to submit to a breathalyzer test can also be used to show a consciousness of guilt; however this argument is not nearly as strong as a breathalyzer result above the legal limit. Juries often do not see a refusal as evidence of guilt; particularly if the citizen accused can articulate a reasonable basis for their refusal. For example, drivers are often confused as to what a breathalyzer entails and ask to speak to a lawyer prior to making the decision. As explained above, the law does not require this and officers are almost certain to deny such requests. This is a situation where a jury is likely to understand the refusal as something other than consciousness of guilt.
Breathalyzer – to blow or not to blow? Wait … there’s more
Under Florida law, the Florida Department of Highway Safety and Motor Vehicles (” DHSMV”) will suspend your license upon your arrest for DUI. The first 10 days after your arrest, you’re allowed to drive with no restrictions; however, on the 11th day you will begin a 30 day period where you will not be allowed to drive for any purpose (“the hard suspension period”). After the 30 day hard suspension period, you will be eligible to obtain a Business Purposes License (“BPO”). If you refuse to submit to a breathalyzer however, the hard suspension period triples and you will not be eligible for a BPO for 90 days. The significance of this is clear; while it is likely to be helpful, in defending your criminal case not to have a breathalyzer result, you should consider the practical effect of not being able to drive for 90 days and while you can request an administrative challenge of the DHMV’s administrative suspension of your driver license, such challenges are seldom successful.
Breathalyzer – to blow or not to blow? A little more …
Effective of October 1, 2008, Florida law requires that a driver convicted of DUI, with a breathalyzer result .15 or higher, place an interlock device in their vehicle for a period of six months. This is something else that a citizen arrested for DUI should consider in deciding whether or not to submit a breathalyzer.
Needless to say, this guide is intended to provide the reader with some general guidelines and limited information regarding Florida DUI law; it is not intended to be legal advice. Many of the decisions that need to be made by a citizen charged with DUI, particularly decisions relating to the administrative suspension of his license, are time sensitive — meaning that if the individual charged does not assert certain rights within a specified period of time, some as little as 10 days, his ability to assert these rights is deemed waived. The consequences of a DUI conviction are significant and should not be taken lightly. An individual arrested for any criminal offense, particularly DUI, should seek quality legal representation.
Law Offcies of Ed Suarez, P.A.