The reality is that a number of people are going to feel that they are unimpaired and will get behind the wheel after having imbibed.

These drivers may even be right about being unimpaired: the National Highway Traffic Safety Administration (NHTSA), a branch of the U.S. Department of Transportation, notes that “virtually all drivers are substantially impaired at 0.08 BAC [blood-alcohol concentration].”  (NHTSA State Legislative Fact Sheet 1996.) Not only does this leave some wiggle room even for people at the 0.08% BAC level, the fact remains that people below that level may not be so unimpaired as to be unable to legally drive.

This article is not meant to encourage you to drive when you have been drinking!  The best way to avoid a DUI (driving under the influence) arrest is not to get behind the wheel after you’ve consumed alcohol.

But simply saying, “The safest course is not to drink, then drive” somewhat begs the question.  Clearly even the insanely-MADD members of society cannot expect that anyone who consumes alcohol will never again get behind the wheel of a car.  Sooner or later, the effect of alcohol wears off.

This post, then, is written to assist those people who, in good faith, believe they are within their legal rights to drive and want to avoid a drunk driving arrest.

Make Sure Your Car’s Registration Is Current

The first and easiest thing to do to avoid being stopped while driving after drinking (and I promise this is the last time I’m saying this here: I did not say “drunk driving”; I am not intending to encourage drinking and driving) is to make sure that your registration is current.  A number of people who I see accused of drunk driving were originally stopped because a bored patrol officer — or perhaps one patrolling near a bar and looking for excuses to stop people — noticed an expired registration tag.

If you’re driving after drinking and your registration tag has expired, you’re tempting fate.  Don’t do it.

Obey All Traffic Laws

The second thing to remember — and perhaps the most common reason people get stopped and then arrested for a DUI — is to obey all traffic laws.  Don’t speed.  (Don’t drive too slow, either!  Officers sometimes stop people for going below the speed limit.)  Don’t make any turns without signaling; don’t even change lanes without signaling.  Remember that making u-turns in some areas (such as a business district or a marked “no u-turns” area) is illegal.

Make Sure Your Car Meets All Legal Requirements To Be On The Road

My personal feeling is that there are too many police officers on the roads.  This particular tip sort of proves the point.  On more than one occasion, I’ve seen a DUI arrest that started with someone who did not have a front license plate.  Ever get stopped by an officer and sit there as he walks to the front of your car?  He’s checking for the front plate.  If his stop was a “bad stop,” but your front plate is missing, he’ll testi-lie that he noticed that on a foggy, pitch-dark night as he approached you from behind.

Similarly, if your windows are tinted, the officer may testi-lie that he thought maybe they were tinted more than the law allows.  Or maybe your rear turn signal, or brake lights, weren’t working.  Perhaps one of the bulbs was out on your rear license plate.

The point is, if you’ve had a drink before getting behind the wheel, it will be even more important that you know every aspect of your car is in working order and doesn’t violate any legal codes.  If you are stopped by a police officer “just because,” you might win your DUI case based on the stop being unconstitutional.  But if the officer can point out a problem like a burned out headlight or some other defect with your car, the stop will almost certainly be ruled constitutionally-okay, even though the officer couldn’t have known about the defect at the time he made the stop.  (This should not be true, but it often is.)

Don’t Tell the Officer You’ve Been Drinking!

It amazes me the number of people who tell a police officer they’ve been drinking.  Doesn’t anyone watch television?  You have a right to remain silent.  Use it!

You don’t want to lie about it.  Leave lying to the police officers.  But just because you’re not going to lie doesn’t mean you have to answer the question.  While your refusal to answer might make you look suspicious, you don’t have to answer.  My fondest wish is for someone to be mistakenly arrested for DUI, but then have the officer arrest that person for refusing to answer the question.  Seems to me that case would be fun to litigate! And if your case goes to trial, telling the officer you had “one drink” right before he arrested you isn’t going to help.

Don’t Take the Coordination Tests

Once you get stopped, if you’ve had even one recent drink, the officer is almost certainly going to claim he smells alcohol on your breath.  He might say this even if he doesn’t smell alcohol on your breath.  Remember, the officer is allowed to lie to you — and, unofficially, he’s also allowed to lie to the court.

Alcohol itself doesn’t actually even have an odor; the odor comes from whatever drink contained alcohol.  Some non-alcoholic drinks, therefore, could “smell like” alcohol to an officer who will stink up his report by saying he smelled the “odor of alcohol on the suspect’s breath.”

Once he has a hunch you’ve been drinking, the officer is going to ask you to take “field sobriety tests,” also known as FSTs.  “Field Sobriety Tests” is a fancy phrase for “coordination tests”; it just sounds more scientific, so it helps convince juries that the officer has “proof” that you were drinking.  Of course, you were already taking a coordination test before you were stopped: you were driving your car, which requires various types of coordination.  Why give the officer more?

Besides, you’ll almost certainly fail.

“We have no idea how well a sober person can perform on the SFST [field tests]. How does age or gender affect performance? How does fatigue or practice affect performance?” [Spurgeon Cole, a forensic scientist and consultant in Georgia] has written. “Without answers to these basic questions, the SFST remain in the same category as tarot cards.”

Cole did his own study, administering the tests to 21 of his students at Clemson University in South Carolina — none of whom had had a drop of alcohol — and then showing the videotape of their performance to a group of officers. They [sic] officers reported they’d arrest nearly half the students.

“And these people had absolutely zero to drink,” Cole said in an interview. “These tests are absolutely worthless.”  (Brigid Schulte, “DUI Hokeypokey: Police, Lawyers And Scientists Engage in a Clumsy Dance Over the Merits Of Roadside Sobriety Tests” (November 15, 2001) The Washington Post.)

Many people think that they must take the coordination tests.  This is not true.  California has no law (yet) that says you must take the test.  When the officer asks if you’ll take the tests, “Just Say No.”  Without the “test results,” it will be that much harder for the officer to testify he had probable cause to belief you were drinking and driving.

Important Note: California law does not (yet) require that you take the “Field Sobriety Tests.”  However, California law does require you to submit to either a breath or blood test for alcohol, once you have been arrested.  The officer will read you an admonition telling you this.  Refusal to take the breath or blood test (or urine, if neither of the others is available) can increase the penalties if you are convicted of DUI.

The Best Way To Avoid a DUI Arrest Is Not To Drive After Drinking

As I noted above, I’m not encouraging you, or anyone else, to drink and drive.  The best way to avoid a DUI arrest is not to drink and drive.  If you’re unsure whether you’re safe to drive, consider waiting awhile longer before driving.

Remember: the life you save may be your own.

What If You Are Arrested?

So you’ve done everything I suggested and got arrested anyway. Or you were arrested before you read this article. Now what?

I am a criminal defense and DUI attorney practicing primarily in the Fresno, Kings, Tulare and Madera counties. See the article I wrote titled “Last Night I Was Arrested For Drunk Driving” on my regional blog.

On the way home, Marie was stopped by the police for allegedly making a turn from the “right-turn-only” lane without signaling.

When the officer approached the car, he asked Marie for her driver’s license and registration. He looked at them and asked, “Ma’am, have you been drinking?”

Marie said that she had “one glass” of wine earlier in the evening, but had not had anything to drink for more than an hour. The officer told Marie to step out of the car.

Marie was confused. She knew something about drunk driving. She knew that she’d only had one drink, had switched to soda after that and eaten with the girls before finally getting into her car. She had signed the pledge to eliminate drunk driving. She knew that even the MADD — “insane,” her lawyer-husband called them — Mothers Against Drunk Driving website said that it took three drinks within one hour on an empty stomach for a woman her size to reach the 0.08% blood-alcohol level which was presumptive proof of intoxication in California. And she had had only one drink.

What Marie did not know is that the officer actually had no objective clues that Marie may have been drinking, but the town where Marie lived was hoping to receive a DUI grant. The grant was “free” money from the government for communities “to put additional resources on this very serious problem.” The police where Marie lived had started fishing for people to arrest. The idea was to increase the number of DUI arrests to “show” that their community had “a very serious problem,” so they could get money for more officers.

Another thing Marie did not know was that she did not have to answer the officer’s questions about her activities. She did not have to consent to do any coordination tests (usually referred to as “Field Sobriety Tests”) and she did not have to submit to a Preliminary Alcohol Screening breath test prior to her arrest unless she was on probation for a DUI already. (After you are actually lawfully arrested, you must submit to chemical testing in California, or suffer additional penalties, including a one-to-three-year license suspension.)

Marie also did not know that many of these tests are not very reliable. In particular, the Horizontal Gaze Nystagmus test, which is actually an examination and not a test, is highly inaccurate and usually administered by officers without the proper expertise to evaluate its results. Even the other coordination tests produce varying results in ordinary people under the types of conditions that exist during a typical DUI stop. Unfortunately, the “CSI-indoctrination” many jurors receive from television means the results of these tests will be given more weight than they deserve.

Marie’s “tests” took place next to a crowded roadside with many distractions. Aside from the embarrassment of everyone driving by while she was obviously performing “sobriety tests,” Marie was further distracted about the possibility of some errant driver plowing into her and the officer. Some of the coordination tests — don’t be confused by the constant use of the phrase “field sobriety tests” because these are actually just tests of agility and coordination —can be difficult for some people to “pass” even when sober. And the final judge of whether or not Marie “passes” the test is the police officer. The tests are to collect evidence to use against her, not for the officer to decide if she’s driving under the influence. He’s already decided that. It’s the reason he had her do the tests!

If Marie had known her rights, she would have been able to refuse the field sobriety tests and avoid, or take advantage of, the CSI effect at a subsequent trial. She didn’t. After Marie “failed” the tests, she was arrested, her car was towed and the nightmare began.

^*Facts, including, but not necessarily limited to, name, job and other personal information have been changed in the above post to protect identities. This post is not intended to provide particularized legal advice. If you have a DUI case, contact me or another DUI attorney in your area for advice specific to your case.

This doesn’t happen with every objection, but every objection has this potential. If there is an argument, the judge has to hear both sides. Only then can he or she dismissively wave in the direction of the defense while announcing the objection is “overruled.”

And since any argument not infrequently occurs only in a sidebar, the time incurred in allowing a fair airing of the issue is increased.

Department of Motor Vehicle hearings are so much more honest and efficient. There, the hearing officer is straightforwardly and unabashedly both “judge” and “prosecutor.” This provides a significant time savings because the prosecutor doesn’t have to argue the point; he or she simply puts on the judge hat and overrules the objection without argument.

It helps that hearing officers are not attorneys. This prevents the unnecessary expenditure of time while they consider various points of law before making their decisions.

I’ve posted another brief at JDSupra which clearly demonstrates this phenomenon and the lack of due process of law in a typical DMV hearing.   I submitted the original brief to a DMV hearing officer in hopes of convincing him that, under the law which WAS found by the courts to be applicable even to the DMV, the forensic laboratory report was inadmissible hearsay and could not be trusted as the sole evidence that my client was in violation of DUI laws.

The objection was “noted and overruled” by the prosecu- … uh … hmm … the jud-  …um … er … the non-lawy- … hrmmm … the hearing officer.

As they say on the Internet, “More after the jump.”

This is what Mike said:

My name is Mike. When I was in need of an attorney, I had no idea who to call. My co-worker told me of Mr. Rick Horowitz. I called Mr. Horowitz, which is probably one of the best decisions I have made thus far in my life.

Mike’s case involved DUI charges. As in all such cases, there were the two primary charges: violations of Vehicle Code § 23152(a) and § 23152(b). In the end, I was able to get him an agreement where the District Attorney modified the § 23152(a) charge to reckless driving and as to § 23152(b), we got a finding of NOT GUILTY. An accompanying traffic violation was dismissed. So Mike is going to get his license back.

His letter goes on to state:

If you are in need of an attorney that will fight for your rights, keep you informed of your case, then Mr. Horowitz is the attorney to call. I had a hard case, Mr. Horowitz worked until he and I were satisfied with the outcome. He has an easy payment plan, works to your advantage so that you will not be strapped to pay back. I never appeared in court, Mr. Horowitz did all that for me. This way I could keep on working as not to interrupt my busy job as a ________.

I deleted Mike’s reference to his job in order to protect his privacy. Mike’s letter was dated July 13, 2008, but it was delivered to my office yesterday.

Thanks, Mike! It was a pleasure to meet you and now that your case is over, I wish you the best of luck!

DUI defense is a growing part of my practice, although I normally defend more serious criminal cases, such as those involving gang members and including assaults, attempted murders and (in one case) the death penalty. In the past year, I have represented something less than a dozen people on DUI charges. In every case, I obtained for my clients a better result than anyone anticipated.

Before I give any examples, I want to add this disclaimer:

Attorneys are human beings. Or, at least, I am. This means we cannot predict the future. Even when something seems certain based upon our background, training and experience, this does not make it possible to know what will happen with any particular case until it has happened. My own contracts contain what I refer to as my “No Crystal Ball Guarantee.” What I mean by this is that the only thing I guarantee is that I don’t own a crystal ball. And even if I did, I’m sure I would not know how to use it. When you hire me, you are hiring a skilled attorney with a positive track record. Each case, however, is different. No particular result can be guaranteed in advance. And one of these days, I’m bound to lose a case.

If you run into an attorney who says differently, you should run in the opposite direction. An attorney who guarantees you a particular result is an attorney who will tell you anything to get your money.

Having said that, it is always possible to say, based on experience, training and background, what the attorney thinks might happen. I just always remind my clients that I may have been accused of having…uh…hmm…chutzpah, but I do not have crystal balls.

Some of My Recent DUI Case Results

• In a small town an hour or so south of Fresno, my client was facing his fourth DUI. Since it was a fourth DUI, it was charged as a felony. At the time he was charged, he was already in jail serving a term after a plea agreement on three prior DUIs. (He did not have me as his attorney on any of those.) When I took the case, he still had approximately 6 months left on his sentence. There was probably enough evidence for a conviction on the felony DUI.

   END RESULT: Based upon my work on the case, the court reduced the felony DUI to a misdemeanor, let my client out of jail early and sentenced him to drug court. The last I heard, he had nearly successfully completed the program, has stopped drinking and should eventually get his driver’s license back.

• I inherited a felony DUI case from another attorney. The client was not a U.S. citizen. There was a concern over the possibility for deportation upon a conviction. The client had at least four prior DUI convictions.

   END RESULT: Upon learning my client had never had the opportunity to reform himself, I convinced the court to agree to give him probation with an approximately six-months in-patient rehabilitation program. After the program, he would be re-evaluated and if it was felt there was not a satisfactory response to the program, he would repeat it, for a total of just under one year. This should help him avoid deportation. I was recently informed that he had successfully completed the initial program and is not expected to continue driving under the influence.

• A young man was arrested after driving the wrong way on a one-way street in an unfamiliar area of town. Police determined he was driving while intoxicated. Because he did not contact me soon enough after his arrest, the DMV had suspended his Class B (commercial) license for one year.

   END RESULT: Through a particular type of motion, which many attorneys and even the courts don’t always know, I was able to get a lesser charge of wet and reckless, a NOT GUILTY finding on his blood alcohol level and got his driver’s license reinstated.

• A man was arrested after allegedly speeding and evading the police. When arrested, he supposedly failed his Field Sobriety Tests. Breath and blood tests supposedly showed blood alcohol above the legal limit.

   END RESULT: We obtained a NOT GUILTY on his blood alcohol level and his driver’s license will thus have to be reinstated.

These are some of the most recent DUI cases I have handled. As the old saying goes, “YMMV.”

While I’ll bring all my experience and skill to bear on your case and keep you fully-informed of the progress, remember that these results are no guarantee of what will happen in your case.

By the way, the last two clients listed above never even had to appear in court, thus saving them the embarrassment of having to stand there while everyone heard that they were allegedly driving under the influence.

1. See California Vehicle Code § 23152 at http://www.dmv.ca.gov/pubs /vctop/d11/vc23152.htm (last visited July 7, 2008).