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I posted this today in response to a question on another board, and a comment that a person should NEVER take a breath test if stopped for drunk driving. That's NOT necessarily good advice, and I think the reasons why are worthy of broader exposure. Besides handling steroid-related legal matters, I've handled many hundreds of drunk driving cases, formerly as a prosecutor and now as a defense lawyer.
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The laws and practicalities regarding DUI (or "DWI") are important to understand. Whether or not to take a breath test is an important decision. Here's a brief basic primer:
1) You can be arrested for drunk driving whether you blow in the tube or not. All the officer needs is PROBABLE CAUSE to believe you are driving while intoxicated. A breath reading is evidence -- strong evidence -- against you, but it is NOT necessary for a conviction. So, if a guy is driving erratically, slurring, staggering, and stinking of beer, a cop can arrest him and a jury can convict him. As a prosecutor, I tried many refusal cases and won.
2) Anything you say to the police can be used AGAINST you. Most DWI defendants ADMIT to drinking alcohol before driving (often minimizing the amount, e.g., "I only had two beers..."). This statement is damaging, and serves as corroborating evidence of the officer's observations of a person's intoxicated condition. While most people know not to respond to police interrogation without a lawyer, it's harder to remember that after a couple of six packs.
3) REFUSING to take a breath test has its own serious consequences. To discourage refusals, many states make the fines and suspension/revocation terms for refusing the test even worse than those for taking the test and being convicted of a reduced plea. Further, some prosecutors will deny a reduced plea offer to defendants who refuse a breath test, forcing either a trial or a plea to the charge.
4) In cases where a person has only consumed two or three drinks, taking the test may EXONERATE the person from a DWI charge in some jurisdictions, and result only in a ticket for a lesser offense. Each beer, shot or mixed drink is typically the equivalent of around a .02%, and alcohol is dissipated by the body at the rate of .02% per hour (these are rough but generally accepted principles). In many states, the level for DWI is .08%. So, you do the math. If you blow a .07%, you may only be charged with a non-criminal offense in many jurisdictions.
The vast majority of drunk driving cases are resolved by NEGOTIATED PLEA BARGAINS, not trials. In states where a reduced plea bargain to a NON-criminal offense is available, most experienced criminal lawyers generally recommend TAKING the breath test UNLESS the situation includes an aggravating factor that typically preempts such a plea bargain, such as an accident or a prior alcohol-related offense. So, the guy in a first-time, typical DWI stop based on a minor traffic violation usually does better by taking the test than by refusing. (One exception is where he takes the test and blows a reading so astronomically high that the prosecutor refuses to plea bargain. In that case, the reading is evidence that's worse than a refusal. But most people who are not die-hard alcoholics blow fairly modest readings.) [These are general comments, not legal advice. A lawyer licensed in YOUR jurisdiction is the best source to find out the exact local plea bargaining policies and state DWI laws.]
Now, saying all that, may I make a public service announcement? Booze is an EXTREMELY dangerous drug that has been involved in thousands of fatalities, including countless ones each year on the roads. Having been recently hit head-on and injured myself by a drunk driver, and having represented people both cahrged with drunk driving and those injured by drunk drivers, I say please, DON'T DRINK AND DRIVE. If you're gonna drink, designate a driver. If you've had too much, call a cab. Seriously.
Stay safe,
Rick Collins
www.cmgesq.com
www.steroidlaw.com
**************
The laws and practicalities regarding DUI (or "DWI") are important to understand. Whether or not to take a breath test is an important decision. Here's a brief basic primer:
1) You can be arrested for drunk driving whether you blow in the tube or not. All the officer needs is PROBABLE CAUSE to believe you are driving while intoxicated. A breath reading is evidence -- strong evidence -- against you, but it is NOT necessary for a conviction. So, if a guy is driving erratically, slurring, staggering, and stinking of beer, a cop can arrest him and a jury can convict him. As a prosecutor, I tried many refusal cases and won.
2) Anything you say to the police can be used AGAINST you. Most DWI defendants ADMIT to drinking alcohol before driving (often minimizing the amount, e.g., "I only had two beers..."). This statement is damaging, and serves as corroborating evidence of the officer's observations of a person's intoxicated condition. While most people know not to respond to police interrogation without a lawyer, it's harder to remember that after a couple of six packs.
3) REFUSING to take a breath test has its own serious consequences. To discourage refusals, many states make the fines and suspension/revocation terms for refusing the test even worse than those for taking the test and being convicted of a reduced plea. Further, some prosecutors will deny a reduced plea offer to defendants who refuse a breath test, forcing either a trial or a plea to the charge.
4) In cases where a person has only consumed two or three drinks, taking the test may EXONERATE the person from a DWI charge in some jurisdictions, and result only in a ticket for a lesser offense. Each beer, shot or mixed drink is typically the equivalent of around a .02%, and alcohol is dissipated by the body at the rate of .02% per hour (these are rough but generally accepted principles). In many states, the level for DWI is .08%. So, you do the math. If you blow a .07%, you may only be charged with a non-criminal offense in many jurisdictions.
The vast majority of drunk driving cases are resolved by NEGOTIATED PLEA BARGAINS, not trials. In states where a reduced plea bargain to a NON-criminal offense is available, most experienced criminal lawyers generally recommend TAKING the breath test UNLESS the situation includes an aggravating factor that typically preempts such a plea bargain, such as an accident or a prior alcohol-related offense. So, the guy in a first-time, typical DWI stop based on a minor traffic violation usually does better by taking the test than by refusing. (One exception is where he takes the test and blows a reading so astronomically high that the prosecutor refuses to plea bargain. In that case, the reading is evidence that's worse than a refusal. But most people who are not die-hard alcoholics blow fairly modest readings.) [These are general comments, not legal advice. A lawyer licensed in YOUR jurisdiction is the best source to find out the exact local plea bargaining policies and state DWI laws.]
Now, saying all that, may I make a public service announcement? Booze is an EXTREMELY dangerous drug that has been involved in thousands of fatalities, including countless ones each year on the roads. Having been recently hit head-on and injured myself by a drunk driver, and having represented people both cahrged with drunk driving and those injured by drunk drivers, I say please, DON'T DRINK AND DRIVE. If you're gonna drink, designate a driver. If you've had too much, call a cab. Seriously.
Stay safe,
Rick Collins
www.cmgesq.com
www.steroidlaw.com
