How To Avoid A DUI or Drunken Driving Conviction, Particularly If You Are Innocent

By Attorney Mike Brewer

 

Mike Brewer is a former prosecutor and leader of The Brewer Law Firm, based in Orange County, California. He is author of DUI strategy for Thomson-West publications series Inside the Minds of Leading Lawyers. For more information on DUI cases, go to http://california-criminal-dui-lawyer.com/

 

PLEASE DRINK ALCOHOL BEVERAGES RESPONSIBLY. THE PURPOSE OF THIS ARTICLE IS NOT TO CONDONE OR ENCOURAGE DRUNKEN DRIVING, DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH THE READER, OR INTEND TO PROVIDE LEGAL COUNSEL. IT IS MERELY INTENDED AS AN INFORMATIVE OVERVIEW OF CALIFORNIA DRUNKEN DRIVING ISSUES. CONSULT WITH AN EXPERIENCED DRUNK DRIVING ATTORNEY FOR SPECIFIC CASE ADVICE.

 

As an attorney whose practice focuses on representing professionals, they often ask me what test they should take if detained for a drunk driving investigation. This occurs even more frequently during the holidays. There is no easy answer. It depends on the facts in the individual case. Breath is better in some cases, blood better in others. It depends on the blood alcohol level and the drinking pattern. However, here is a summary of the issues, and the best answers for most cases. It is weighted in favor of avoiding unjust convictions of people who have been drinking, but are still below the legal limit.

 

HERE’S THE SUMMARY – THE FULL ARTICLE FOLLOWS

 

QUESTIONS ABOUT DRINKING HISTORY: DECLINE

 

Officers who contact you at night, particularly on weekends or on holidays, will often first ask you whether you have consumed alcohol. If you say “yes”, they will then move into a drunk driving investigation. You will also be asked a series of questions about your drinking history, and will later be held in court to your inaccurate estimates. Deal with the officer politely and calmly, as you should at all times, even if they try to provoke you, but do not answer these questions. 

 

FIELD “SOBRIETY” TESTS: DECLINE

 

So-called field sobriety tests are actually coordination tests, very difficult except for young athletes and those who have practiced them often. They are designed for failure, and designed to trip you up. You put yourself at the mercy of an unknown officer’s subjective opinion. You cannot pass these tests. Do not do them, in any case.

 

HAND-HELD BREATH TESTS: DECLINE

 

All breath testing is flawed and inaccurate. The hand-held devices used in the field are particularly unreliable, inaccurate, and may give entirely false readings. They also mistake other substances for alcohol. The advantage to these devices is that you can avoid arrest with a good result, and be on your way. The danger, however, is that a false reading can result in you not only being arrested, but facing a wrongful conviction. My advice is that you do not submit to them. The only exception to my rule is that, if you are less than 21 years of age, you are required to take this test, or lose your license for 1 year. Otherwise, if you are 21 or older, do not submit to them.

 

BLOOD OR BREATH EVIDENTIARY TEST: BLOOD (ON BALANCE)

 

You can decline these tests as well, but if you do so, it is an automatic 1-year license suspension, even on a first offense. Both tests are flawed, but blood is generally better and more reliable than breath tests in most cases. Blood samples can also be tested again later to detect problems, and cannot be as easily tampered with, or corrupted, as breath tests. Your blood alcohol level will likely no longer be rising by the time that you are taken to the station and give a blood sample, and may have fallen. You will avoid a hard 30-day suspension on a first offense if your blood sample tests below the legal limit. The only time that you want to submit to one of these breath devices is if you are sure that you are way over the limit, in which case a malfunction may be your only salvation. Otherwise, take the blood test.

 

BOTTOM LINE: POLITELY DECLINE TO ANSWER ALL QUESTIONS, DECLINE ALL FIELD TESTS, AND SIMPLY TELL THE NICE OFFICER THAT YOU SIMPLY WISH TO GIVE A BLOOD SAMPLE.

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