Note: This post is for informational purposes only and not for the purpose of providing legal advice. Contact an attorney for advice with respect to any particular issue or course of action.
Let’s be clear about this up front: do not drink—or get high—and drive. A DUI will change your life forever: the $10,000+ price tag attached to a DUI pales in comparison to the irrevocable damage to your career, your reputation and, most importantly, the lives of those driving on roads. It’s not worth it, especially with the alternatives of ride-hailing in this day and age.
Yet, realistically, I understand there are some selfish bozos out there, potentially including you, that will make poor decisions from time to time. IF you have been drinking or are under the influence of drugs, this post covers recommendations on what to do if you get pulled over by the boys (and girls) in blue.
Before we get to the specific steps, consider an example of how this traffic stop may unfold:
You drive to a party where you plan to not drink. But low and behold, that dream crush of yours comes strutting through the door looking as good as ever. You get anxious, so you pour yourself a drink. You hit it off with said crush, have another few drinks and mutually agree to go back to your place. Your home is only a mile away, so you hop in the driver’s seat, bursting with excitement (Strike 1).
It gets a little frisky on the way home, but then your heart drops when you see the red and blue lights in your rear-view mirror. You immediately begin to try to contain yourself, but deep down you’re panicking and thinking of the worst. You frantically search your seat and nearby compartments to make sure no open containers are visible (Strike 2). The officer approaches your window, and the conversation goes as follows:
Officer: “Good evening. Do you know why I pulled you over?”
You: “Sorry officer. I might have swerved back there.” (Strike 3)
Officer: “Yes, that’s correct. Have you been drinking tonight?”
You: “I only had two drinks, and that was a while ago.” (Strike 4)
Officer: “Step out of the car, please. Due to your erratic driving and the smell of alcohol on your breath, we’re going to conduct a field sobriety test. Will you agree to a breathalyzer test?”
You: “Ok, sure.” (Strike 5)
You blow a 0.12%. The officer places you under arrest for DUI, and you ride in the back of a cop car on the way to your booking. Upon your arrival to the police station, you are requested to perform an evidentiary blood, urine or breath test. Without consideration of your options, you consent to the blood test (Strike 6). After a frightening night behind bars, you spend countless days and dollars trying to defend yourself, your career and your reputation.
Like the last pick on the playground, you struck out twice. A lot went wrong here, but this example is far from uncommon. Especially when you’re in the heat of the moment and have a police officer in your face, it’s difficult to think through your options and how to handle the situation. This is why you need to understand your options in advance so that you can be more prepared if you find yourself in this situation. Before we get to the actual steps, you need to understand some background on breathalyzer tests and what are known as “implied consent laws.”
The Two Breathalyzer Tests
The question at the top of your mind is likely whether you should refuse the breathalyzer test. Well, it might surprise you to read that there are actually two breathalyzer (or other sobriety) tests, and it’s very important to understand the difference. These two tests are known as the “preliminary test” and “evidentiary test”:
- Preliminary test: This test—the one performed at the traffic stop—is the one that comes to mind for most people. It’s generally a breathalyzer and/or field sobriety test, representing a pre-arrest screening to determine whether the officer has probable cause to place you under arrest for DUI.
- Evidentiary test: This test is administered only if you have been arrested. It can be a breathalyzer, urine or blood test, and it’s usually performed at the police station.
You have the right to refuse both of these tests. However, doing so can be a poor decision for a number of reasons, most notably of which is the immediate consequences from implied consent laws.
Implied Consent Laws
Every state has what are called implied consent laws. Under these laws, you automatically consent to chemical testing to determine your blood-alcohol content (BAC) when you apply for your driver’s license. If you refuse the tests, you risk automatic suspension of your license and other penalties which vary by state (determined by the state in which you’re pulled over, not the state where you obtained your driver’s license). On top of that, your refusal can be used against you in court, so you can still be charged with a DUI based on evidence from the arresting officers.
One key point here: in most states, implied consent laws only apply to evidentiary tests—not preliminary tests. That is, in most states, these laws only apply if you have already been arrested for DUI, meaning you are not required to (1) perform the field sobriety tests (e.g., eye test, walk-and-turn, one-leg stand) or (2) blow into the portable breathalyzer at the traffic stop. If you’re arrested and requested to take chemical tests at the police station, however, the implied consent laws will apply. Nonetheless, some states are in the minority and still impose some sort of penalty for refusing the roadside breathalyzer test. For this reason, it’s very important for you to know the implied consent laws in the states where you typically drive. Look these up while the topic is fresh on your mind.
The basis for implied consent laws is that driving is a privilege—not a right—and law enforcement must determine if you are a danger to the public. With these laws in mind, there’s even more to consider when handling these nightmare scenarios.
What to Do If You Get Pulled Over Intoxicated
Now for the actual steps. To be clear, there is no flawless, magic formula to getting out of a traffic stop for DUI. In other words, the recommendations below will not guarantee that you will drive away free; rather, these are ways to improve your chances of avoiding arrest or dismissing the charges at a later date. Getting pulled over while intoxicated is usually a no-win situation, so the best option is to never drink and drive in the first place. Nevertheless, keep the below steps in the back of your head just in case. And if you have not yet read the post on what to do when you get pulled over, take some time to read it first as most of that advice will still apply.
1. Remain calm and still
As soon as you see the police in your rear-view mirror, do your best to remain calm and composed. Take a few breaths, slow your car down, pull over to a safe location, come to a complete stop and turn off your radio. The officer will be watching (and likely even filming) you from the police cruiser, so do not frantically search through your car or make sudden movements—doing so will only raise the officer’s suspicion. If you do have anything illegal that is visible in the car (e.g., an open container, blunt), try to make no apparent movements while concealing the contraband where it will not be visible to the officer. Don’t grab gum or breath mints as those will trigger red flags for the officer.
Next, calmly gather your license, registration and proof of insurance (if within close-reaching distance). Then keep your hands on the steering wheel (where the officer can see them) until the officer arrives at your window. If you have any passengers, remind them to remain calm and still as well.
Note: During a normal traffic stop (when you haven’t been drinking), it’s advised to not collect your license, registration and proof of insurance before the officer specifically requests the documents (so as to not heighten the officer’s fears of you searching for a weapon or concealing criminal activity). When you are intoxicated, however, strongly consider gathering these documents in advance without frantically searching through your wallet or glove compartment. If you’re intoxicated, it’s in your best interest to minimize the officer’s observations of your uncoordinated movements, especially if you have trouble locating the documents.
2. Let the officer do most of the talking
Once the officer approaches your window, keep your answers as brief as possible. Be polite and respectful by referring to the officer as “sir,” “ma’am” or “officer.” If the police suspect you of being intoxicated, they will be searching for any red flags—watery and bloodshot eyes, the smell of alcohol or slurred speech. Keeping your answers short and to-the-point will help minimize any slurred words or the possibility of you incriminating yourself.
Your goal should be to avoid any further suspicion. While you have the right to remain silent (other than answering basic identifying questions), refusing to answer the officer’s questions will likely escalate the situation and put you at further risk of being requested to perform a breathalyzer or field sobriety test. This will require some judgment on your part, but remember to keep your answers brief regardless.
3. Do NOT mention that you have been drinking or doing any other drugs
NEVER, EVER, EVER admit that you have been drinking or doing drugs when pulled over by the police. Even if you only had one beer several hours beforehand, there is nothing to gain by admitting that you have been drinking. IF you slip up and mention that you had a drink or two, be sure to point out the extended time since you consumed the alcohol as well as the meals you ate before driving.
4. Consider whether to refuse the preliminary sobriety test
If the officer suspects that you are under the influence, he or she will likely order you out of the car and request that you perform both a field sobriety test and breathalyzer test. You must get out of the car (try not to use the door or car for balance), but you have the right to refuse both the breathalyzer and field sobriety test. As referenced above, these are preliminary tests before any arrest, and the implied consent laws typically do not apply to these tests in most states. The purpose of these preliminary tests is not to gather evidence to be used in court, but rather to assess whether there’s probable cause to arrest you for DUI.
However, the question still remains: should you refuse the preliminary sobriety tests? Well, I’ll use a lawyer’s favorite answer: it depends. It depends on how much you’ve had to drink (or the extent of your drug intoxication), your demeanor and self-control at the traffic stop, the officer’s conduct, the state’s implied consent laws and whether you’re willing to risk a suspended license and night in jail for slightly improved odds of avoiding a DUI conviction. Here are some general rules of thumb:
If Not Intoxicated
If you are not intoxicated, obviously you should conduct the tests to prove your innocence and not risk arrest and potential penalty from the implied consent laws. Be respectful to the officer, take the tests and move forward without causing any ruckus.
If Near Legal Limit
Now it gets tricky. The decision here depends on several factors, which we will cover in more detail below. However, here’s the general guideline: if you have had less than a few drinks and believe your BAC is close to or less than 0.08% (the legal limit), strongly consider complying with the preliminary field sobriety test and roadside breathalyzer test. We’ll get to why this is the case and certain caveats to consider, but first take a gander at the primary pros and cons to complying with the preliminary tests:
Based on the table above, you can see why complying with the preliminary tests can be worth the risk. While refusing the tests can deter any concrete evidence against you, you will likely get arrested for DUI, spend a night in jail and face any immediate penalties of the state’s implied consent laws (again, most states’ implied consent laws do not apply pre-arrest). On the other hand, complying with the tests at least gives you a chance of driving away free, and you still have the opportunity to refuse the evidentiary tests (thus preventing the more solid proof against you).
Importantly, there are several caveats to this guideline to comply with preliminary tests:
i. If you’re panicking or losing control
If your heart is beating out of your chest and you can hardly contain yourself, you’re more likely to fail a field sobriety test (it shouldn’t have any impact on your breathalyzer test). This is important because you can still be arrested for DUI even if you do not reach the legal BAC limit of 0.08%. If you exhibit any noticeable impairments—whether on the road (e.g., swerving or hitting objects) or during the field sobriety test (stuttering your words or falling over)—you can be arrested for DUI even if you are under the legal BAC percentage. In these instances, you’re better off refusing the preliminary tests (if implied consent laws do not yet apply in the state) as you’ll likely face arrest anyways.
ii. If you’re under the age of 21
Every state has what are called “per se” or “zero tolerance” DUI laws for drivers under the age of 21. Under these laws, drivers under the legal drinking age with any trace of alcohol in their systems (even 0.01%) can be arrested for DUI. In many states, these laws can also apply if you are driving with children in the car. With this in mind, strongly consider refusing the portable breathalyzer test that would incriminate you on the spot.
iii. If you already have poor balance
Field sobriety tests can be difficult, even if you’re sober. If you already have poor balance or other health limitation, respectfully refuse to take the test and state your reason for doing so.
iv. If state’s implied consent laws apply to preliminary tests
As referenced above, implied consent laws—which result in automatic suspension of your license and other potential penalties upon refusing testing—do not apply to preliminary tests in most states. However, if the state in which you’re pulled over does apply these laws to the preliminary tests, this is an additional factor that should push you towards consenting to the preliminary breathalyzer and/or field sobriety tests.
v. If you’re intoxicated from drugs other than alcohol
For most states, the term “intoxicated” applies not only to alcohol but to drugs as well (note this can also be referred to as an OUI—operating under the influence of drugs). Whether you were smoking the reefer or took prescription drugs that can impair your ability to drive, you can get a DUI for driving “noticeably impaired” even if you blow below 0.08%.
Rather than specifying a legal amount of substances, state laws typically focus on impairment. Officers that deem you impaired—usually based on your erratic driving, slurred speech, glassy eyes and/or smell of drugs emitted from you or your car—oftentimes involve trained officers known as Drug Recognition Experts (DREs). The officer or DRE will typically request to perform a series of field sobriety tests to identify any symptoms of drug intoxication.
Without a portable device equivalent to the breathalyzer to reliably test for drug intoxication, preliminary testing for impairment from drug-use can be highly subjective. Thus, police must rely on their observations and the results of any field testing from the DRE to have probable cause to arrest you. For similar reasons stated above for alcohol intoxication, it’s likely in your best interest to take the preliminary field tests in these situations. However, if you are confident that you will “fail” the series of field tests challenging your balance and cognitive ability, politely refuse and invoke your right to remain silent.
To sum it up, lean towards taking the preliminary tests, but only if you believe you have a reasonable chance of passing. If you ultimately decide to refuse any preliminary sobriety tests, do so politely by saying, for example, “my lawyer told me to never submit to these tests.”
If Confident Over the Limit
If you’re clearly drunk or stoned and in no way should have been driving, you’re likely screwed either way—and deservedly so. Regardless, it’s in your best interest to refuse the preliminary field sobriety test and breathalyzer test, but only if there is no penalty for doing so under the state’s implied consent laws. Invoke your right to remain silent, and request to speak with a lawyer (assuming you’re not too plastered to speak).
5. Consider whether to refuse the evidentiary sobriety test
If you get arrested for DUI, the police will take you to a police station to perform evidentiary testing. This testing, which can be a breath, urine or blood test, is more scientifically accurate and reliable than the roadside preliminary tests. This is when most implied consent laws apply (unless the state is in the minority and imposes penalties for refusing preliminary testing).
Deciding whether to refuse the evidentiary test can be even more complicated than the decision for the preliminary test. However, as another general guideline, refuse the evidentiary test if you are confident that you will test above the legal limit. Why? Consider the pros and cons of taking these tests:
As you can see, this is quite the dilemma. On one hand, you can comply with the evidentiary test and hope that you either (1) test below the legal limit or (2) somehow win your DUI case with evidence stacked up against you. On the other hand, you can refuse the evidentiary test, thus accepting the automatic license suspension in exchange for a lack of evidence that should boost your chances of avoiding a DUI conviction.
If you’re confident that you will test above the legal limit, it’s usually in your best interest to refuse the evidentiary test so that you don’t incriminate yourself with damning evidence. The downside of this route is the automatic license suspension, which will stand even if you eventually win your DUI case; however, the consequences of a DUI charge are usually far worse than the penalties imposed by implied consent laws. Plus, if you opt to comply with the test and get convicted of a DUI, you’ll face a license suspension anyways. Refuse the tests, prevent the incriminating evidence and improve your odds of pleading guilty to an offense other than DUI or striking the DUI from your record altogether.
If you believe your BAC will test near the legal limit—say you blew a 0.08 or less during the preliminary tests or refused the tests completely—consider the gamble to take the evidentiary test in hopes of a lower BAC from the slight passage of time. You should also consider complying with these tests if you absolutely do not want to risk losing your license, even if that means you are more likely to have a DUI conviction on your record. If, for whatever reason, you decide to take the evidentiary tests, request to take the breath evidentiary test (not the blood or urine test). Breath tests are more vulnerable to error and are thus easier for lawyers to attack in court. Your goal should be to make your DUI case as strong as possible, even if you lawyer is not yet involved.
Intoxication from drugs other than alcohol
As you’ll recall, the preliminary tests for intoxication from drugs other than alcohol are highly subjective, as officers rely on their observations of your appearance, behavior and field tests to determine whether you are impaired. When you arrive at the police station, however, there are more scientifically reliable tests to determine your substance concentration. Officers may request to perform a blood or urine sample to determine your drug concentration, and/or a DRE officer may request to perform an optional, 12-step assessment to further test your impairment.
Similar to evidentiary tests for alcohol concentration, it’s usually in your best interest to refuse the evidentiary tests if you are confident that drugs are in your system (note that implied consent laws would apply here as well). Alternatively, if you are not intoxicated, take the blood or urine test to prove your innocence.
6. Pay attention to what officer says and does
Throughout all of your interactions with police officers—from the traffic stop and arrest to your booking and release—take mental notes of what the officers say and do. Law enforcement officers are required to explain your rights when making an arrest. If the arresting officer gives you false information or does not explain that you have the right to remain silent and the right to refuse the preliminary and evidentiary tests (subject to consequences), your lawyer can use this as a basis for dismissal of your case. For example, if you refused the BAC tests without the officers clearly making the resultant consequences known to you, your defense attorney can use this as a possible defense to a conviction.
7. Upon being released, document everything you can remember about the arrest
After a DUI arrest, you’ll usually be stuck in jail until you post bail or a judge releases you own your “own recognizance” (i.e., a written promise to appear in court). Immediately upon your release, write down everything you can remember about the arrest. Focus on the following:
- What you were doing before you drove
- What (and how much) you consumed before you drove
- The time period between consumption and the traffic stop
- Where you were pulled over
- The officers’ behavior and instructions provided
- What you said to the officer(s) and how you responded to their instructions
- When and if you were notified of your rights
- When and if you took the preliminary and/or evidentiary tests, including the results of these tests (if aware)
- Any other details you can remember, even if they seem irrelevant (e.g., the weather, passenger and witness names, officer description, what you were wearing)
Recent memories are more accurate, so jot these down as soon as possible. The more you can document about your arrest, the easier it will be for your lawyer to fight the charges against you.
8. Contact a lawyer
If you haven’t done so already, it’s time to layer-up. DUIs can be personally devastating—not only from the criminal penalties and massive lawyer fees, but likely to be worse are the impact on your career opportunities and reputation. Your lawyer will be a critical resource in guiding you through the court process and assisting you with any related DMV hearings.
After your arrest, you’ll not only have to deal with criminal DUI penalties, but also the suspension of your driver’s license and potentially even civil lawsuits if anyone was injured or property was damaged in relation to your impaired driving. With this will come significant legal fees, not to mention the time and effort it will take to rebuild the damage to your reputation.
Remember that you always have the right to contact an attorney, even at the traffic stop. If you’re unsure of what decision to make, request to speak with a defense attorney right away.
Again, do not even put yourself in this situation. Even if YOU think you will be fine getting from point A to point B, one inadvertent move by you could devastate your life, your family members’ lives and victims’ families forever.
Be safe out there.