Whenever I’m at a party or social gathering, and my profession as a criminal defense lawyer comes up in the conversation, the topic of DUI almost always follows. People are fascinated by this particular crime. I think it makes sense why: Nearly all of us need cars to survive in this society, and alcohol is the most socially acceptable drug (perhaps besides caffeine). We can relate to it much more than, say, a bank robbery. According to the Centers for Disease Control, more than 10,000 people die in the U.S. each year in crashes that involve an alcohol-impaired driver. It’s a hot topic at the intersection of public health and popular culture. And it’s one of the few crimes that I’ve represented 18 year olds and 85 year olds alike. I thought it would be fun to pull back the curtain just a bit on the DUI and de-mystify the actual process of arrest.
Keeping in mind that every scenario is going to be dependent on the facts of the case, here are some basic things to consider before being stopped for DUI, during the interaction with police, and afterwards. As always, this is for information purposes only and does not constitute legal advice or any attorney-client relationship.
BEFORE AN ARREST:
-Don’t Drink and Drive. It might seem obvious, but the surest way to avoid a DUI is to refrain from drinking and driving. It’s not illegal to drink and drive in Washington. It’s only against the law to drive while under the influence of alcohol, which means that your driving is “affected to an appreciable degree” by the alcohol or drugs, or both. What that limit is for each individual person varies on a lot of factors, like sex, height/weight, health conditions such as diabetes, type and amount of alcohol/drugs consumed, timing, and many others. But as the ancient Greeks said, “Know thyself.” Get an Uber if you feel like you’re affected by the alcohol. It doesn’t take much to push you over the legal limit of .08 in Washington. For a person who weighs 160 pounds, 3-4 drinks in an hour will probably get you to, and over, the limit.
-Talk to a Lawyer. Most people don’t do this until they need a lawyer. But you know what they say, “an ounce of preparation is worth a pound of cure.” Everyone should have a good doctor, mechanic, and lawyer on call for them. If you already have a lawyer, then in the event you get arrested for DUI, you can ask to speak to that person directly, who will already know you and your background. Of course, there are always public defenders on call 24/7 to help you if you are arrested, but they won’t know you and you won’t know them, which can make a stressful situation worse.
-Get a Dashcam. Do yourself a favor, and buy a front and rear-facing dash cam as soon as possible. It will be very helpful to have an objective record of your driving and your contact with police, who don’t always have body or dashcams of their own. A dashcam can also greatly help if you’re involved in an accident, whether alcohol is involved or not. Cams these days can upload footage directly to the cloud, which is very convenient.
-Make Sure your Car is Legal. Fix that broken taillight, get that cracked windshield repaired, renew your tabs. Basically make sure your car is road-worthy. Of course it’s true that police can find violations as a “pretext” to stop you for DUI, but the more ship-shape your vehicle is, the easier it will be for your lawyer to argue that the police illegally stopped your car to really try to conduct a DUI stop.
DURING AN ARREST:
-Stay Calm and Act Courteously. If you see police lights behind you, find a safe place to pull over and do so promptly and safely. Take a deep breath. Accept that this is happening, and get in the mindset of Defense as soon as possible. Your job now is to not help the police officer build a case against you. This is true whether you are under the influence or not. If you have passengers in the car, they should remain quiet observers and perhaps should consider recording the interaction between you and police on a cell phone. Under Lewis v. Dept. of Licensing, recording of these interactions are not private conversations for purposes of Washington’s two-party consent law (i.e. you can record audio without the consent of everyone present).
Most people think that the more cooperative they are with police, the less likely they are to be arrested/go to jail. In my experience, especially with DUI, the opposite is true. The more cooperative you are, the more evidence you are going to hand the police to prosecute you. There’s a difference between being polite/courteous and doing everything that’s requested of you, even if it hurts you and your case. Know your rights as a citizen.
Police can stop and detain you for traffic infractions like speeding or expired tabs. They may say they smell alcohol and ask you questions about your drinking. You don’t have to answer, all you are required to do under Washington law is provide your license, registration and proof of insurance. You may be asked to step out of your car, you must do so.
-Don’t Answer Questions/Request a Lawyer. But you absolutely do not have to answer questions about consumption of alcohol (or anything really). Again, being courteous is important here. If you wish, you can say that your lawyer advised you not to answer any questions. You should also request, in clear unequivocal language, to speak to a lawyer very early in the process.
-Don’t take any Field Sobriety Tests (FST’s), or Portable Breath Tests (PBT). If you are requested to take a portable breath test or field sobriety tests (like walking in a straight line on the side of the road), know that those are voluntary and you can’t be penalized for refusing them. The PBT, or roadside breath test, is only valid to be used to establish probable cause to arrest you, so don’t give the police any additional reason to do that. If you truly haven’t consumed any alcohol, you could perhaps take the PBT. But even that’s dangerous if the police suspect that you are driving under the influence of drugs, rather than alcohol. Another thing that most people don’t understand about DUI is that you can be charged with a DUI even if your breath level is less than .08. The law says that you can commit a DUI by having a .08 BAC or while being under the “combined influence” of alcohol and any drug. So don’t assume just because you haven’t had any alcohol that you’re out of the woods if you register a .000 PBT test.
The thing to keep in mind during this process is this: It’s highly likely you’re going to be arrested. You’re going to go to jail. It’s going to be a bad night for you. But by being smart about the process you can limit the pain you feel and lay the groundwork for a successful defense against any later charges. Don’t resist arrest, even if you know you aren’t under the influence. The time to fight will come later.
AFTER AN ARREST:
-Questions/Statements. Remember the section with tips during your arrest, and maintain your right to remain silent. The police officer is going to try to ask you dozens of questions concerning what you’ve had to drink, medications you’ve been taking, your driving, and so on. If you incriminate yourself by talking to this officer, you will make the DUI case against you that much stronger. Don’t answer any questions of the officer. (No need to be impolite about it, however). If you make contact with a lawyer, they’ll often tell the officer not to ask you any questions as well.
-Breath Test. At the jail or police station, the police officer will sit you down in a room and read you some warnings, called the implied consent warnings. In Washington, by driving a motor vehicle on a public road, you impliedly consent to giving a breath test. However, you can revoke that consent and refuse to take the test. But, when you do this, the penalties on your license and on your freedom can be harsher than if you take the test. This is by design, the Legislature, as a matter of public policy, wants people to take breath tests.
Here’s an example: Say you have one prior DUI on your record from 5 years ago, and now you’re arrested for a second one. You decide to take the breath test, which shows your result as a .10, or a bit over the legal limit of .08. If you were convicted of a DUI from this result, the law says you would have to spend 30 days in jail (minimum). But, if you refused to take the breath test, and then were later convicted, the law says you’d spend 45 days in jail (minimum). In this same scenario, you’d lose your license for 2 years if you took the breath test, but 3 years if you refused the breath test.
So should you take the test or not? From my perspective as the lawyer, I like when the client refuses the test. No test = less evidence to convict my client at trial. But, it’s not that simple. Washington law says that the prosecutor can use the fact that you refused the test as evidence that you’re guilty. The case that held this is called State v. Baird, and it’s a poor decision in my view, but right now that’s the law.
If the breath test is below, at, or slightly above the legal limit of .08, there are strategies we can use to attack the test result. But that evidence has powerful appeal to juries, and it is cloaked in an aura of scientific legitimacy. Defense lawyers know that the testing process is rife with potential errors and inaccuracies, so a strong investigation of the exact machine used in the case will be very important in defending the charge.
-Request/Call a Lawyer! This one is probably obvious, but if you haven’t already talked to a lawyer before or during the arrest, you need to speak to one right away after. The sooner you request an attorney from the officer, the better. They don’t necessarily have to put you in touch with one on the side of the road or in the squad car, but they must connect you to one at the police station or jail.
After you have been processed and released, there are deadlines that are beginning. The most urgent of which is the 7 day deadline to request a hearing with the Department of Licensing, who will be working to try to suspend or revoke your driver’s license. If you don’t request a hearing to prevent that happening within 7 days of your arrest, it is likely that you will lost out on any opportunity to challenge the suspension of your license. See RCW 46.20.308(7). This is a complex area of law that the right lawyer can assist you in navigating. The action against your license is totally (well, mostly) separate from the criminal DUI charge that might not be filed against you for months or even more than a year later!
-It’s Going to Be Ok! I call DUI the “everyone” crime because anyone can get one. It doesn’t make you a bad person, and it doesn’t have to derail your life. If you do get arrested for DUI, the best thing to do is talk to a lawyer you trust as soon as you can.
I hope this piece has been helpful in getting you thinking about how to protect yourself if you are ever stopped for a DUI. Call me if you need me.