BEEN DRINKING AND PULLED OVER – WHAT TO DO
The best way to avoid a DWI is to avoid drinking and/ or avoid taking drugs, legal or not, before driving.
What follows is based upon my twenty-five (25) years plus experience handling hundreds of DWI. This is only applicable based upon Arkansas laws.
Predicting your own level of intoxication is risky at best. In Arkansas, you are presumed to be driving while intoxicated with a blood-alcohol level of 0.08 percent or greater.
Factors include, but are not limited to the amount of alcohol in each drink, size and gender of the person, period of time alcohol was consumed, and food in the system.
Okay, so you are pulled over and you have been drinking – you shouldn’t have put yourself and the public in this position, but what’s done is done. Don’t do something stupid like attempting to evade the police – that is obvious. But also don’t do something stupid like trying to use mouthwash or gum. Instead, roll down your windows to freshen the air in the car. Get your license, insurance and registration out, but don’t do make any sudden moves. Also, be careful not to fumble with your purse or wallet because that is a clue of intoxication law enforcement looks for.
If you honestly had one 12 ounce beer or one ounce of alcohol, the equivalency of a “drink”, a couple of hours ago, and the officer asks if you had anything to drink tell him that. If he asks you to blow into a portable breath test you are better off doing it, blow a legally permissible number and probably walk away unscathed.
Now, let’s say you have had more than one drink the last hour – minimize your breathing and have your paperwork ready. The officer asks how much you had to drink – then what? I will never advise you that you lie to a police officer. Your goal is to avoid blowing into the portable breath test or taking standard field sobriety tests. But if he asks you to blow and you only had, say for example, only two or three drinks in the last couple of hours, your call. You might blow a legally permissible number, and you might not – at least you have a chance. However, if you determine you are not going to take the official breathalyzer at the station, then don’t blow into the portable breath test and refuse to perform standard field sobriety tests. You see, if you do, then you have incriminated yourself to the point of a likely conviction. If you refuse the breathalyzer at the station then you have probably given the government enough information at the scene, ie field tests and portable breath test, to still convict – even without a breath or urine sample given, to convict. Furthermore, if you refuse to take the breathalyzer at the station, your license will probably be suspended for refusal to submit to the breath test.
Okay, you have had a lot to drink, and you are absolutely sure you will not get a legally permissible intoxication level as part of a breath or urine exam. The officer asks you if you had anything to drink, tell him “I am not comfortable answering that question”, or “I am not required to answer that question”. Also, do not consent to taking the portable breath test or any of the field sobriety tests, such as the officer having you follow his finger or pen during his examination of your eyes, a walk and turn test or a one legged stand. You can refuse all of those without any license suspension implications. However, when you get to the station and he demands a breath, urine or blood test you can refuse but your license will be suspended. Additionally, in Fort Smith, an impermissible test result of .15 percent or above on the official test results in jail time imposed, so a refusal might help avoid jail time.
YOU TALK – YOU DON’T WALK