Yes, I’m aware that you aren’t reading this because you’re thinking about doing some drinking and driving this weekend, and you’d like some advice on how to avoid getting pulled over and arrested for DUI or DWI. Or maybe you’re a planner. But it’s more likely that you’ve already been arrested, and are trying to figure out just how much trouble you might be in. Things happened pretty fast, and you might be second-guessing some of the decisions you made, starting with when the officer pulled you over. Well, I can’t turn back the clock—what’s done is done–but I can give you an idea of what I wish my Washington, D.C. and Virginia DUI cases looked like when they come through my door.
First, I’d love it if a DUI defendant didn’t tell the officer that he “only had two beers.” One, it’s not believable—if an officer or judge hears someone admit to two beers, they figure you had double that, or more. For some reason, “two beers,” is the most common answer, but this isn’t the Family Feud, so you get zero points for popularity. What you get instead, is an officer who now has reasonable suspicion to get you out of your car, and start putting you through Field Sobriety Tests (FSTs). And you have an admission to drinking that will count against you at trial. So my wish list answer to the question, “have you been drinking tonight?” is “no officer.”
But now you’re out of the car on a D.C. or maybe an Arlington street, and the officer is asking you to perform the FSTs—Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. Now, what I’d really wish for is for you to perform each one of those perfectly. But if you had, you wouldn’t be reading this blog right now, because you probably wouldn’t have been arrested. So since you might be walking into my office, I’d prefer that you had simply declined to take the tests. That’s right, just say no. Most people have no idea that’s even an option, but it is, and it’s one you should exercise. Without the FSTs, there is a whole lot less for prosecutors to point to at trial when they’re arguing that you were driving under the influence or while intoxicated.
Finally, we come to the breathalyzer test. Many people confuse the breathalyzer test that is given back at the station following the arrest with the Preliminary Breath Test (PBT) sometimes given on the street. But there is a major difference. The PBT is considered so inaccurate, that in neither Washington, D.C. or Virginia is it permitted to be introduced into evidence. It’s only “value,” is to the officer, who may be on the fence about whether or not he has probable cause to arrest you. It can’t be used to convict you. But when you refuse the FSTs, you are also refusing the PBT.
That leaves the breathalyzer test that is administered after you’ve been placed in handcuffs and taken to the police station. In both Washington, D.C. and Virginia, there is something called “Implied Consent.” The short version is that anyone who uses the roads in Washington, D.C. or Virginia has agreed that, if requested by a police officer as part of a DUI/DWI arrest, he or she will agree to offer a breath sample. While you have certainly never actually agreed to anything of the kind, the courts have upheld the idea that the consent is implied.
I have already written a blog on whether you should take the breathalyzer test when arrested for DUI. It’s here. The answer is too complicated for this discussion, since there are several considerations. But since I’m writing a wish list here, my answer is, take the test if your score will be under .08, the legal limit for the amount of alcohol that can be in your blood when you are driving. If your Blood Alcohol Content (BAC) is below that amount, I’ve got a strong chance at winning your trial. If it’s .08 or higher, I’ve got a lot more work to do. Of course, in most cases, you will have no idea what your BAC would be. And if I have to choose to defend a case where the defendant refused the breathalyzer, versus one where the BAC is .08 or higher, I’ll take the refusal any day.
The truth is that DUI and DWI cases are complicated and each one is like a snowflake—unique. For an analysis of the specific fact pattern in your Washington, D.C. or Northern Virginia DUI, contact Jay Mykytiuk Trial Attorney for a case evaluation.