My friend, Nafise' Nina Hodjat, is a defense attorney in Southern California. Of course, no one is condoning drinking and driving. Designate a damn driver! But s**t DOES happen. So, if you are involved, here's some wise advice:
(from Avvo.com) If you’re stopped and the police believe that you have been drinking, the police will only be doing their job if they try to determine whether or not you’re intoxicated. There are two problems: (1) The tests the officers use are flawed and (2) You can be charged with a DUI if your BAC is below .08.
1- How You Can Be Charged With A DUI Even If Your BAC Is UNDER .08!
That’s right, even though the legal limit for DUI in California is .08 BAC, you can still be convicted of a DUI if you’re under that limit! Why, you might ask? Well because there’s a little law in California that says so…California Vehicle Code 23152(a) provides: “it is unlawful for any person who is under the influence of any alcoholic beverage…to drive a vehicle.” Therefore, if you’ve have had one drink, say a .05 BAC, you may have violated the law! To top it off, the science behind the way the BAC is calculated is questionable, leading to errors that may lead to the conclusion that you were over the legal limit when in fact you were not! So if you're ever stopped and have had even one drink, remember these tips...you might even want to keep a copy of this article in your car to refer to.
2- Remain Calm And Only Provide Required Documentation
By law you are required to show proof of insurance, a valid driver’s license and valid registration. You want to stay calm when you’re reaching for your glove box and wallet…the officer will be building a case against you and being nervous and clumsy can be indicators of intoxication in the officer’s eyes. Any such information or so-called indicators of intoxication will be noted in the Police Report. So just say “Hello Officer, I will now provide you with my license, insurance and registration.”
3- Do Not Answer The Officer’s Questions
Remember, anything you say or do can be used against you. From the time that the officer pulls you over, they will pay attention to everything in order to build a case against you. The only time you should answer any questions is if you have information that would aid in your defense such as a medical condition that would cause your eyes to twitch, etc. Keep in mind that the police assume that you will not be truthful about how much you have had to drink, so if you think it wont be harmful to say something like “I’ve just had a beer” think again...they take that to mean “I’ve just had 5 beers.” It’s not that they necessarily think you’re lying; it’s just that they believe that if you’re intoxicated, your memory will not be clear about how much you have actually had to drink. To be on the safe side, just repeatedly say: “Under the advice of my lawyer, I respectfully decline to answer that question.”
4- Never Do Any “Test” That The Police Ask You To Do
The police will ask you to follow their finger or pen to see how your pupils move…if your pupils move in a way that the officer determines is wrong, it will be taken as evidence of intoxication. Similarly, the officer will ask you to do field sobriety tests such as walking on a real or imaginary line, balancing on one foot or touching your finger to your nose. Do NOT do any of these tests! These tests are NOT objective indicators of intoxication and are hard to perform even if you’re relaxed and in great athletic shape, let alone tired and intimidated while you have an officer shining a flashlight in your face on the side of the street! Again say “I respectfully decline your request.”
5- DO NOT BLOW INTO ANYTHING
Unless you’re under 21 years old, decline doing any type of breath test. The breath testing devices are extremely flawed and there will be no evidence to retest after you’re arrested, so don’t take them! When asked to do any type of breath test say “I respectfully decline to submit to a breath test – I will consent to a blood test.”
6- REQUEST A BLOOD TEST
You've got to submit either to a breath test OR a blood test...If you refuse both a breath test and a blood test, you’re going to be violating another law and will automatically lose your driver’s license. Since the breath testing devices are extremely flawed, make sure you request a blood test. The officers will try to scare you into taking a breath test…they will say that you’re going to spend the night in jail and that a breath test is so much faster and easier. Don’t be fooled, it is easier – for them to arrest you more quickly. They’re planning on arresting you anyway, so you’re going to be spending the night in jail regardless! Again say “I respectfully decline to submit to a breath test – I will only consent to a blood test.”
7- Its Easier Said Than Done, But Don't Be Intimdated!
I realize that all of this sounds easy, and if you’re pulled over you may get nervous and the officers will probably try to intimate you into answering their questions and doing their tests. Remember that at the same time the officers are doing their job, you also have rights that you are entitled to. Just try to remain respectful towards the officer while keeping in mind that you’re entitled to respect of your rights as well. There’s a lot at stake…a DUI conviction can have very serious consequences that can harm your career and family. Remember the few sentences in quotes above, be respectful to the officer, and you will be in much better shape than 99% of anyone else stopped for a DUI.