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The 3 Biggest DUI Mistakes Drivers Make During A Traffic Stop.

Posted by Shawn B. Hamp | Dec 08, 2015

What Not Do If Charged With A DUI

The biggest mistake that anyone can make is getting behind the wheel of a vehicle after having too much to drink.  Poor planning compounded by impaired judgment can lead to a decision that is costly and could be fatal.

Alcohol not only impairs the judgment of DUI suspects before they get behind the wheel but also after they get pulled over by a police officer.  Even if you are not impaired by alcohol it is extremely intimidating to be the suspect of a DUI investigation.  A truthful admission of having some alcohol before being pulled over can lead to a battery of tests and poor decisions that can lead to a DUI arrest and a possible conviction. The following are three of the biggest DUI mistakes drivers make during a traffic stop:

Mistake 1: Submitting to the Field Sobriety Tests

A traffic officer only needs reasonable suspicion that a traffic violation was committed to stopping a motorist who is driving or suspected of a DUI. But to arrest a DUI suspect an officer needs a higher burden of proof or probable cause that an actual DUI was committed.

A police officer develops probable cause by conducting a DUI investigation. Police officers do this by having a suspect submit to field sobriety tests. These tests include the Horizontal Gaze Nystagmus Test (HGN, a.k.a. the pupil/follow my pen test), the finger to nose test, the walk and turn, one-leg stand, Romberg Modified (balance test), and ABC alphabet test. Of these tests, only the HGN, walk and turn, and one-leg stand is even approved by NHTSA as standardized field sobriety tests.

If an officer asks you to perform these tests, just say no. These tests are called Standardized Field Sobriety Tests. You are not legally required to perform these tests even if an officer asks you to do so.

For a Standardized Field Sobriety Test *FSTs”  to be reliable and accurate they need to be instructed, explained, and measured exactly the same way each and every time. The problem is that they are not.

Each officer explains and measures these tests differently. Each roadside stop has different terrain and weather conditions. Poor performance can be caused by nervousness, fatigue, or physical impairment.

There is no explanation or criteria for what is a successful test. Is missing your nose once a pass or fail? What if I sway just a little bit?  What if you can't say the alphabet at 2:00 am without singing?

It doesn't even matter if you perform well because most officers and police agencies in Mohave County never videotape the subjects who perform these tests. Be assured that how you perform these tests will be held against you and that an officer will testify at trial that you did poorly on them.

The only test you are required under law to complete is a breath or blood test once you have been arrested. This is the test conducted when you blow into the machine at the police station or a licensed phlebotomist draws your blood to be collected in vials.  An officer must read a legal form that warns you that these tests are required before you have to submit them to them.  In Arizona, you do not even need to blow into the roadside portable breath test (PBT) because that test device is not reliable enough to be required.

If you are ever asked to perform a field sobriety test, don't do it. You won't get a ribbon if you pass it, and it will just end up being used against you in Court.

Mistake 2: Make Incriminating Statements

You have an absolute right to remain silent. This right is enumerated under the 5th amendment of the United States Constitution. You do not have to be a witness against yourself. In each and every DUI investigation a police officer is going to ask you questions to do just that.

It all starts with the first question. “Where are you coming from?” Then the next question. “Have you been drinking?”.  Then another question. “How much have you had to drink?”.  “Coming from the bar”, “Yes”, and “Just a couple of beers” are not good answers.

You are only required to give your license and registration to a police officer when you are pulled over.  That's it. It is illegal to lie to a police officer. The solution is to just say nothing at all.

A police officer is not even legally required to give you Miranda Warnings before they start asking you these questions. The reason is that Miranda Warnings are not required to be given unless you are in police custody. When you are stopped along the road you are not in custody yet. You could end up saying something that will give the officer probable cause to arrest you.

Even if you are placed under arrest and read your Miranda Rights, exercise them. Sometimes officers will ask you even more questions in a DUI interview. They will ask you these same questions even if you already been arrested. They will ask you about when you ate last if you are tired, or on a scale of 1-10 how impaired you are (the right answer is zero).

Think about it.  The officer has already arrested you. They know your alcohol level if you blew into the machine already.  The jail is waiting for you. You are not going home even if you give a “60 Minutes” interview to the police officer.

Mistake 3: Not Requesting a Lawyer.

Everyone has the right to consult with an attorney during any criminal investigation before or after being arrested. Rule 6.1 Ariz. Rules of Criminal Procedure. This even includes DUI suspects.

Most DUI suspects don't know or don't ask for a lawyer.  Many don't know they have a right to call an attorney or call a family member to secure an attorney.  Sometimes an officer may even try to deter a suspect from calling one.

“[L]aw enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication, if such access does not interfere unduly with the matter at hand.” McNutt v. Superior Court, 133 Ariz. (1982) citing People v. Gursey, 22 N.Y.2d 224, 227, 239 N.E.2d 351, 352, 292 N.Y.S.2d 416, 418 (1968).

In DUI investigations, this right is important because the time frames of a DUI investigation are critical in making the decision to obtain “independent exculpatory evidence”.  Denial of that right can result in a DUI case being dismissed. State v. Holland, 147 Ariz. 453, 456 (1985).

In Arizona, a suspect in a DUI investigation has a right to consult with counsel if it will not unreasonably delay or impede the DUI investigation. If a motion to dismiss or suppress evidence is filed by the defense on grounds of deprivation of the right to counsel, the State has the burden to prove that any deprivation of the right to counsel would have interfered with the DUI investigation; otherwise, the remedy is the suppression of evidence and dismissal of the charges.

Any evidence obtained following the violation of a defendant's right to counsel must be suppressed, and often times a dismissal of the charges is the remedy when the State interferes with a defendant's inability to consult with counsel.

Police Officers Make Mistakes Too.

DUI investigations and prosecutions are some of the most complicated and technical cases to prosecute and defend. Police officers can often make mistakes during their investigations.

There are many legal steps and technical requirements for a DUI investigation to be properly conducted.  If you or someone you know is charged with a DUI it is always advisable to consult with a criminal attorney who can review the case to spot any possible issues or defenses.  Don't make one of these common DUI mistakes if you can avoid it, but if you do don't hesitate to call a lawyer right away.


About the Author

Shawn B. Hamp

President and lead counsel for The Hamp Law Offices, LLC (An Arizona Professional Corporation), Shawn Hamp has practiced law for more than 15 years with an emphasis in criminal law. An experienced trial attorney, Mr. Hamp has been lead counsel in hundreds of criminal trials and court...

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