So let's talk about what's going on during a traffic stop for a suspected DUI. But first, my credentials so you'll know that I know what I'm talking about.
From 1987-1989 I was a Certified Type II Breath Alcohol Operator in the State of Missouri. This means that I was certified to operate AND REPAIR the Breathalyzer 900/900A in the state of Missouri. From 1993 to 1998 I was a Certified Breath Alcohol Instructor for the Division of Forensic Science, Commonwealth of Virginia. This means that I was certified to operate the Breathalyzer 900/900A and the Intoxilyzer 5000; additionally, I was certified as an Instructor and taught police officers from all over the state how to operate these machines. I was also certified as a Field Sobriety Test Instructor from the DFS in Virginia, which means I taught police officers from all over the state how to conduct Field Sobriety Tests to include Horizontal Gaze Nystagmus (HGN). I also have 212 DUI arrests with 212 convictions under my belt. And just for giggles, I was also a Certified RADAR Instructor which means - well, you get the idea.
So having said all that, let me tell you why it's never a good idea to drive after you've been drinking, and what goes on from the moment a cop suspects you of DUI. This is gonna be a tad lengthy, so get comfortable.
First and foremost, most DUI arrests begin with a traffic stop for something completely different. Most of my DUI arrests came from speeding violations, but the national average was 'Driving Too Slow.' But for the sake of argument, let's say that the cop sees a car traveling down the roadway, and the car is weaving from side to side. This is called 'Failure to Maintain Lane Position' in legalese, and is sufficient probable cause for a traffic stop. Once the blue lights come on, the process begins.
First thing the cop is going to notice is how long it takes you - or how short it takes you - to see the lights and pull over. If it takes you more than a minute or so to pull over, that's a clue. If you pull over right away and slam on the brakes, that's a clue. And trust me when I tell you that from the moment the cop decides to turn on the lights, he/she is making notes of EVERYTHING you do.
When the cop gets up to the car the first thing he's going to look for is the odor of an alcoholic beverage emitting from the car and/or your person. (Yep, more legalese for you.) If it's there, that's a BIG clue.
Next, he's going to look at your face and your eyes. He's looking for flushed cheeks, a red nose, and bloodshot eyes. If he sees any of these, that's a clue. He's also looking at the condition of your clothing. If you're covered in vomit, then yeah, that's a clue. If the car reeks of urine because you've wet yourself while sitting in your car, yeah, that's a clue. (Yep, I encountered both of these during traffic stops for DUI.) Then he's going to ask you for your driver's license and vehicle registration. While you're searching through your wallet to get your driver's license, he's watching that, too, because if you're having trouble finding it, that's a clue - especially if you go PAST it at least once.
And while you're searching for your driver's license, he's going to ask you a simple non-incriminating question. With me, most of the time it was "Sir, what year is your car?" If you're drunk, you're going to stop, look up at the cop, and go, "HUH?" It is a scientifically proven fact that an intoxicated person cannot have two thought processes at once, so once the drunk gets asked a question while looking for his driver's license, his thought train is immediately derailed. This is another BIG clue.
Once you hand the cop your driver's license, he's going to ask you another non-incriminating question. My go-to question was always, "Sir, what's your middle name?" Invariably, if the driver was drunk he/she would tell me their LAST name, because that's what they're used to. I mean, really, how many times has someone asked you your MIDDLE name? This simple question involves a separate thought process, and a drunk won't be able to do it - they'll respond out of habit, especially if they're still looking for their registration, and will tell you their LAST name. Another clue. (Sometimes I'd ask, "What month were you born?" and most of the time the suspect would tell me their ENTIRE birth date. Another clue.)
By now the cop has enough probable cause to ask you to submit to a series of Field Sobriety Tests, but most cops will take it one step further. They'll ask the driver, "Have you been drinking tonight?" For those of you who say, 'THIS IS A VIOLATION OF HIS CONSTITUTIONAL RIGHTS!' my reply is no, it's not. It's not a crime to have a drink if you're of legal age, and it's not an infringement of your rights to ask this since drinking itself is not a crime. Now, if the cops asks the drive if he's drunk, then THAT is a violation of the driver's rights because the answer could incriminate the driver. That's why a properly trained cop will NEVER ask this question.
Now it's time for the Field Sobriety Tests. Do you have the legal right to refuse to take the tests? Absolutely. Can you be charged with a separate offense for refusing this? NO. And about the FSTs - there is no 'pass' or 'fail' grade assigned. The suspect either 'performed the tests as instructed' or 'did not perform the tests as instructed,' which will be followed by exactly what the suspect messed up during the administration of the tests.
One of these tests is the Horizontal Gaze Nystagmus, or HGN. This is the evaluation of the ability of a person's eyes to track a moving object traveling from side to side, and the cop is looking for three things: smooth pursuit, onset of nystagmus (jerking of the eyeball), and degree of nystagmus at maximum deviation (how badly your eyeball is bouncing when you're looking all the way over to one side). This test has been proven to be 70% accurate if a minimum of TWO of these clues are observed; that means if you have two of these clues, there's a 70% chance that your blood alcohol content (BAC) is AT LEAST 0.08%.
In short, you're drunk. And this test, unlike the Field Sobriety Tests, cannot be practiced because nystagmus is a naturally occurring involuntary condition present in ALL human beings, and intoxication only makes it visible by making it more pronounced to the point where it's easily observable.
This is the point at which the cop should advise you of your Constitutional right against self-incrimination, because if you've given him enough probable cause to ask for a breath test, he has enough probable cause to arrest you - and trust me, he's going to arrest you.
Next is the Chemical Test, or Breath Test, if you prefer. This is when the cop asks you to submit to a chemical analysis of your blood/breath/urine for the purpose of determining alcohol intoxication. When the cop asks you this, shit just got real. Do you have the legal right to refuse to take the test? Absolutely. Can you be charged with a separate legal offense for refusing? ABSOLUTELY. And I can guarantee you that you WILL be charged. It's called the Implied Consent Ruling, and is a law in every state of the Union. This law says that by operating a motor vehicle on the public/private roadways of your state, you have been deemed to have given your consent to a chemical test of your blood/breath/urine for the purpose of determining alcoholic intoxication when asked by a law enforcement official. A failure to consent to this test is a separate criminal offense and WILL result in the AUTOMATIC suspension of your driver's license for a period of not less than 1 year.
Tack that onto the 1 year suspension you're gonna get for the DUI charge (if it's your first offense), and you're gonna be taking an UBER for the next two years.
So let's say that you refuse the FSTs, and you also refuse the breath test. Can the cop still get a DUI conviction? If he's properly trained to recognize the clues and you've given him enough of them, absolutely. I went into court on several occasions with nothing more than my visual observations during the screening process (which began the moment I suspected intoxication) and got a conviction every time thanks to the copious notes I took on the many and varied clues the drivers gave me. I even got a conviction with no FSTs, no breath test, and no advisement of rights. When the defense attorney moved to have the case dismissed because I didn't advise his clients of his rights, the judge asked me why I didn't advise the suspect of his rights. My reply was, "Because I didn't ask him any questions." Case closed, 1 year suspension for Violation of Implied Consent, and 1 year suspension for First Offense DUI.
Why am I telling you all this? A couple of reasons. First, to let you know that there's a hell of a lot more going on when a cop stops someone for suspicion of drunk driving than the average person knows, and that the cops are more highly trained than anyone would think. But the main reason is to try and get you to see while you're sober just how bad an idea it is to drive drunk. A DUI charge will cost you somewhere between $10,000 and $30,000 dollars, not to mention what it's going to do to your insurance. If you have a job that requires you to drive, you're really fucked now because you're going to lose your job. If you have a CDL, you can kiss that goodbye for the rest of your life.
Even worse, drunk drivers kill more than 10,000 people each year, and the last thing you want is to go through the rest of your life with the knowledge that you were responsible for one - or more - of them.
Unless you become one of them yourself. Then your family gets to live with that for the rest of their lives.
Get the point?
In closing, let me say this: if you're a friend of mine and if you ever need a ride home because you're too drunk to drive, call me and I'll come get you, no questions asked. I won't tell anyone it happened, either - not your wife, not your mom, not your dad, no one. Ever.
That's what friends do.
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