What to Do if You’re Caught Drinking and Driving

By | July 21, 2016

(Please note that this blog post is not meant to take the place of professional legal advice.)

It’s no secret that drinking and driving can result in some serious consequences. On top of putting yourself and others in danger, you also run the risk of getting slapped with a heavy fine, jail time, and suspension of your driving privileges. Unfortunately, far too many people are still making the mistake of drinking and driving — 1 out of every 139 licensed American drivers is arrested annually for driving while intoxicated

That’s a sobering statistic. We’re well aware of the risks and negative impacts driving drunk has on our society, yet people continue to engage in this high-risk behavior. While some sort of consequence is essentially inevitable, there are certain steps you can take to reduce the severity of your punishment should you get pulled over while driving drunk. We’ll talk about what to do if you’re caught driving while intoxicated, what conditions need to be met in order to get arrested, and what to do if you are arrested. Please note that this article does not substitute for legal advice or guarantee a reduced sentence  — for tailored advice that’s specific to your case, it’s imperative to meet with an experienced criminal defense attorney. And of course, the best way to prevent getting a DUI? Don’t drive drunk.

How to Get Pulled Over

In order for you to get pulled over, a law enforcement officer must have probable cause. Probable cause by definition means the officer must have reason to believe that you have committed or will commit a crime. In the case of drunk driving, the officer may suspect you’re impaired if you’re swerving or weaving, driving off the road, almost hitting another vehicle or object, or engaging in other erratic driving behaviors. If you get pulled over and are visibly impaired, the officer has reason to believe you’ve been driving drunk and have therefore committed a crime.

Aside from all of these scenarios, an officer has the right to pull you over for minor traffic offenses such as speeding or driving with a broken tail light. If you appear to be intoxicated, the officer may then begin questioning you about whether or not you have been drinking.

What to Do If You Get Pulled Over While Driving Drunk

When you get pulled over, the first and most important thing to keep in mind is to not admit or deny that you have been drinking. Legally, you do not have to answer any of the officer’s questions — even if the officer comes off as abrasive or angry, it’s best to be polite and simply respond with, “I can’t answer that question, officer.” It’s hard to do, but admitting that you even had the smallest sip of alcohol is enough evidence to ensure you’re charged with a DUI. Engaging in conversation also runs the following risks:

  • The officer can easily smell alcohol on your breath
  • The officer can assess that your speech is “slurred” or “slow” — a sign that you’ve been drinking

If the officer questions you and determines that you are indeed intoxicated, he or she may request to perform a roadside sobriety test on you. The law varies by state, but in most cases these tests are voluntary rather than mandatory — they simply exist to provide additional evidence against you in court. You have the right to refuse participation in such a test, as well as any preliminary breath tests the officer may try to persuade you to take. If you test positive for alcohol in your system, you’re giving the officer the probable cause he or she needs in order to make an arrest. Throughout this entire process, you should also politely and occasionally ask if you are free to leave.

It’s also important to keep in mind that you can still be arrested even if you refuse the sobriety tests. However, being arrested under this circumstance gives the state a lot less evidence against you and could help you immensely when your case finally goes to court. Again, an officer needs probable cause in order to make an arrest. The following scenarios are examples in which an officer can arrest you without you taking the sobriety tests:

  • An officer sees empty beer cans/bottles in your car after pulling you over or conducting a search (Note: An officer cannot legally search your car unless you consent to a search.)
  • You appear to be visibly drunk (i.e. bloodshot eyes, slurred speech, you smell of alcohol, etc.)
  • You crashed your car into something, whether it was another vehicle or a stationary object

Note: If you crash your car and injure another person, police are required by law to test your blood for alcohol or drugs whether you consent to it or not.

What to Do If You Get Arrested for DUI

If you do get arrested:

  • Do not say anything
  • Do not consent to a search
  • Do not resist with physical force

After being arrested, you will be taken to the police station where you’ll be required to blow into a breathalyzer or take a blood test. Should you refuse these tests, you’re almost guaranteed to lose your license. However, by refusing this test, it is harder for the state to prove how drunk you were while driving.

So, should you refuse to take these tests? It depends on the state and your record. While refusing the test in some states results in relatively mild consequences compared to an actual DUI charge, refusing the mandatory blood or breath test in other states can result in some pretty harsh repercussions. Some examples? Colorado has relatively minor consequences for refusing a blood or breath test: for first-time offenders, refusing the BAC test will only result in a license suspension of one year. On the other hand, states like Alaska slap those who refuse the BAC test with fines of up to $1,500 as well as jail time and the mandatory installation of an ignition interlock device on your vehicle. And still, states like Ohio can use “reasonable means” — i.e. reasonable force — to make you take a blood test.

It’s also important to note that the court does not punish you for a refusal, but the DMV does. This is why you are almost guaranteed to lose your license if you refuse a BAC test. If anything, a refusal helps you in court because the punishment is set up according to your BAC. If there is no BAC to gauge, then you are actually in a pretty good place for your court case. However, the DMV will make sure you lose your license for a long period of time. This is how the court works hand in hand with the DMV.

The bottom line? Be cautious in your decision to refuse the BAC test. But no matter what situation you find yourself in, the most important thing you can do to help your case is to contact an experienced DUI attorney immediately. If you cannot afford an attorney, the state can appoint you one; however, your best bet in fighting a DUI is to hire a knowledgeable criminal defense lawyer.

About Author

M. Colin Bresee is an experienced Colorado criminal defense lawyer with roughly 20 years of experience under his belt. As a leading DUI attorney, he has worked on more than 1,000 DUI and criminal traffic cases. 

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