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DUI Advice

Do you know how to avoid getting a DUI?  Do you know what to do if you’re pulled over?  This page contains a wealth of information on how to avoid getting a DUI, and how to minimize the damage when it happens.

Don’t Get Stopped

Short of not drinking and driving, it’s best to avoid getting pulled over in the first place.  The police need a reason to pull you over, usually a traffic infraction.  If there isn’t a clear traffic infraction to point to, it is harder to justify a stop, and much easier to get a DUI charge dismissed.  The most frequent infractions are lanes violations and speeding.  If you can drive carefully enough to avoid those, you can usually avoid getting pulled over in the first place.  Defective equipment is another common pretext for a DUI stop.  Usually these involve a headlight or tail light out.  You should replace these as soon as they go out.  If you can avoid these common pretexts, you significantly decrease your chances of getting stopped, and even if you do get stopped you give your attorney more ammunition to have your case dismissed.

Another way to avoid getting pulled over is to stay out until the bars close.  Most police departments in Vermont go home by 2 AM. The State Police go home at 2.  Some of the smaller towns go home by midnight.  Only a few of the larger towns and cities operate 24 hours.  Burlington, South Burlington, and most of Chittenden County operate 24 hours.  The other larger cities such as Montpelier, Bennington, Rutland, etc., also operate 24 hours.  The point is if you wait until the bars close at 2 AM to go home, there are far fewer cops on the road to pull you over.

The Stop

If you do get stopped, your options are reduced but not completely gone.  There are several things to keep in mind at this point.  First, be polite and respectful to the cops, even if they are not polite to you.  We can all argue until we are blue in the face about whether citizens should have to kowtow to the authority of police officers, and there are many excellent writters and attorneys that do, but this page is about avoiding a DUI conviction, not protesting our growing police state.

Second, unless you are ordered to do something by an officer, you do not have to do what they tell you to.  When told to do something, ask the officer if he is asking you or ordering you.  If he is asking, you can – and probably should – politely refuse.

Third, don’t admit any wrongdoing.  They’re not kidding when they tell you anything you say can and will be used against you.  Anything you admit during the stop will limit your options later when your attorney is trying to get your charges dismissed.  Don’t admit you have a headlight out.  Don’t admit you were speeding.  Definitely don’t admit that you were drinking.

Fourth, you have a right to an attorney and a right to remain silent.  Exercise these rights!  These rights cannot protect you if you do not explicitly assert them.  If you are out of your car, there is probably nothing you can say that will help the situation.  You should ask to speak to an attorney, and you should also refuse to answer questions – politely, of course.

After you’ve been stopped, the next step is that the officer needs to justify ordering you out of your car.  The classic three factors to justify an exit order are an odor of alcohol, admission to drinking, and bloodshot and watery eyes.  So to undermine an exit order, don’t smell like alcohol and don’t tell the officer you were drinking.  If you can manage those two, your eyes are probably irrelevant.

People often try to explain away an odor of alcohol by telling the officer that they only had one drink, and they finished it a while before the stop.  Both of these things are not what you should tell an officer.  First, it does not matter how much alcohol you admit to drinking.  The SCOV official opinion is that DUI suspects lie; if you admit to having one drink, you probably had more.  Admitting to consuming any amount of alcohol is enough for an officer to suspect you’re intoxicated.

Second, if you do admit to drinking, it is best to state that all your drinking was done immediately before the stop.  The reason has to do with proving someone’s blood alcohol level at a particular time.  In general, it takes approximately 30 minutes for alcohol to fully metabolize into your bloodstream.  For example, if you drank 5 shots immediately before driving, and were pulled over 30 seconds later, none of that alcohol would be in your system at the time you were driving.  However, by the time you took a breath test at the police station an hour later, all of that alcohol would be in your system and would show up on the breath test.  If you maintain from the beginning that your alcohol consumption was shortly before the stop, it undermines the validity of the breath test.

Once you’re out of the car, the officer will ask you to perform Field Sobriety Exercises (FSEs) and a roadside breath test, also called the preliminary breath test or PBT.  Vermont courts have held that FSEs and the PBT are optional.  The officer cannot force you to do either of them, however, the officer also does not have to tell you that you can refuse.

With regard to FSEs, there is no reason to perform them.  In no way can your performance on the FSEs improve your situation.  If the officer can order you out of the car, he can administer a PBT.  So even if you score perfectly on the FSEs, the officer can still go ahead and administer the PBT, and potentially arrest you.  However, if you do poorly on the FSEs, that will be used against you as evidence that you were intoxicated.

The roadside breath test has a peculiar legal status.  The Vermont legislature has decided that they are inherently unreliable, and so the result of the roadside test cannot be used in court.  The cops can use the PBT result to decide whether or not you are intoxicated, and whether or not to arrest you.  Additionally, the fact that they administered it and it led them to conclude you were drunk can be used in court.  So the cop can’t say on the stand that you blew a .12 at roadside, but he can say that he gave you the breath test at roadside and the result led him to suspect that you had committed a DUI.  Much like the sobriety exercises, there is no penalty for refusing.  Unless you are sure that the result would be under .08, it is probably best to decline.

The Arrest

The first and most important thing to do after you have been arrested is to clearly assert your rights.  As I said earlier, you have a right to remain silent and a right to an attorney, and you will be much better off if you use these rights.  If you invoke your rights, the police are not allowed to continue questioning you; if they do, anything you say can be suppressed.  Furthermore, you need to actually say it; if you don’t explicitly say, “I want to remain silent,” and “I want an attorney,” it doesn’t count.  There was a US Supreme Court case on this a few years ago, Berghuis v. Thompkins, where the defendant said nothing for the first three hours of the interrogation, before breaking down and incriminating himself; the Court said he never explicitly invoked his right to remain silent, even though he was actually silent for three whole hours.

In most situations, after being arrested the officers will take you back to the police station, and go through the process to administer a DataMaster test.  This process is very tightly controlled by the DUI laws, and the officer needs to follow the script pretty exactly or the test result can be suppressed.  The officer will go through the script and read you what are called 1202 rights.  Then you are given 30 minutes to talk to an attorney.  At the end of that 30 minutes, you need to decide whether or not to take the test.  If you agree to the test, the officer will  start processing you into the DataMaster.  There is a 15 minute observation period, and then you are finally given the test.

The Breath Test

The timing is important in this process.  The police are under a lot of pressure to administer a test within 2 hours of you operating a vehicle.  If they manage that, it is significantly easier to prove the State’s case against you.  Therefore it can be beneficial to drag out this process.  However, if you are too obstructionist, they may just decide you’ve refused, which has a host of consequences.

You should always talk to the attorney, even if you’ve read this and already know what to do.  It is a good way to eat up time, and it is always beneficial to discuss your situation with an attorney.

The big decision is whether or not to take the DataMaster test.  Unlike the roadside tests, there are serious penalties for refusing to take the DataMaster test.  If you refuse and you have no prior DUIs, your license will automatically be suspended for 6 months – there are ways to fight it, but you will almost certainly be suspended.  If the officer thinks he has enough evidence, he may go ahead and charge you with a criminal DUI as well, but I’ve only seen that happen when the driver was visibly very drunk.

If you do have prior DUI convictions, refusing the Datamaster test is a DUI crime, and you will be charged with DUI-refusal.

Whether or not to take the test depends on many factors, and you should discuss that with the on call attorney.  As a general rule, if you have priors and you think you would blow a really high number, 2x the limit or higher, you probably should refuse.  Judges and prosecutors don’t really like refusals, and if you have priors than the refusal is easier to prosecute, but both of those situations are better than clear evidence that you were very drunk.

If it’s your first DUI, and you think you’re not too far over the limit, you should take the test.  First time offenders with low numbers generally can get a good deal, such as an admit/dismiss or a NegOp.  Either of those results are better than the automatic 6 month suspension for a refusal.

After the test, the officer will give you all the paperwork and usually send you on your way.  If you’re heavily intoxicated, they may take you to a detox facility, but in most cases they will call someone to come pick you up.  While this may seem obvious, make sure that person hasn’t been drinking!  I handled one case where the person came to pick up their spouse at the police station, and was then arrested for DUI.

Evan Barquist 4 Merrill Lane, #104, Milton, VT 05468 | P: 802.829.9857