Questions About Avoiding Arrest or How Police Act in DUI Stops
If you’ve already been arrested or charged, then you probably don’t care about this section, or it’s too late for you to do anything about it. Whether or not you should have agreed to the breath test doesn’t really matter anymore, since it already happened.
But as a professional DUI defense lawyer, I get asked these hypothetical DUI questions all the time, “What should I do if I’m pulled over?” “Should I take the Breath Test or Refuse it?” Should I Agree to Perform field Sobriety Tests?” and “How do these cases work?” so I include these section for completeness.
- What is the difference between a DUI / OUI / DWI / Drunk Driving Charge?
- If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
- If an officer asks me to perform field sobriety tests what should I do?
- What should I do if I am asked to take a breath test?
- What happens if I refuse the breath test?
- What do police officers look for when searching for drunk drivers on the highways?
- What is the officer looking for during the initial detention at the scene?
There is no difference. In Massachusetts, the specific criminal legal statute refers to “Operating Under the Influence of Intoxicating Liquor”, or OUI for short.
Different state laws call the same act “Driving Under the Influence” (DUI) or “Driving while Intoxicated” (DWI), but they all essentially mean the same thing: a drunk driving accusation and charge. And some states do differentiate between the two, or classify a DWI as a lesser offense from a DUI.
But again, none of that applies in Massachusetts, it is all the same.
For most people, DUI is the most commonly used abbreviation, but courts refer to them technically as an “OUI-Liquor”.
Tell the officer you don’t want to answer any questions until you speak to an attorney. This does mean that if the officer suspects your driving is impaired by your drinking, you will be arrested. But the less you say, the less evidence they have against you.
It is important to be polite and respectful to the police officer if this happens, since if you are rude to an officer, you can be sure he will testify to that in front of a jury.
Check out my article Should I Talk To the Police?
Most of the time, telling the officer that you do not want to perform any tests on the advice of your attorney is your best bet. If you refuse to perform any field sobriety tests the prosecution is not allowed to introduce evidence of that refusal to a jury. The reason the officer asks you to perform the field sobriety tests is so he can use the evidence against you in court.
Officers are also often not well trained in performing these tests and frequently make mistakes which seriously calls into question any scientific validity that they may have. So even if you actually do pretty well, or there are good reasons why you failed, you are still likely to get arrested.
Most experienced lawyers will advise you to refuse the breath test. It leaves you the most and best possible options to fight the case.
Ideally, most people would like to take the test if they know they will blow under the legal limit for blood alcohol which is .08, and refuse the test if they know they will blow over the legal limit. If you are under 21, the Massachusetts legal limit is .02.
This decision is made difficult because most people are not going to judge very accurately what their blood alcohol level is, and breath machines are subject to a number of problems that can make them unreliable, and will sometimes result in a person who is not legally intoxicated having a blood alcohol reading over the legal limit.
If you refuse to take a breath test, that fact can not be introduced against you to a jury under Massachusetts law. Because of all these factors, refusing is the best bet.
If you refuse the breath test, Massachusetts will suspend your drivers license for a minimum of 180 days for a first offense DUI charge. If you fail the breath test then your license is suspended for 30 days. If you choose to plead out, you can get a hardship license in most cases, and minimize the period which you cannot drive.
The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated. The list is based upon research conducted by the National Highway Traffic Safety Administration (NHTSA):
- Turning with a wide radius
- Straddling center of lane marker
- Appearing to be drunk
- Almost striking object or vehicle
- Driving on other than designated highway
- Speed more than 10 mph below limit
- Stopping without cause in traffic lane
- Following too closely
- Tires on center or lane marker
- Braking erratically
- Driving into opposing or crossing traffic
- Signaling inconsistent with driving actions
Speeding, incidentally, is not a symptom of DUI; because of quicker judgment and reflexes, it may indicate sobriety. Some of these accusations may also result in other Massachusetts criminal traffic charges, such as Operating to Endanger, or Reckless Driving. I frequently defend against these charges also, when in conjunction with drunk driving arrests.
The traditional symptoms of intoxication taught at the police academies are:
- Flushed face
- Red, watery, glassy and/or bloodshot eyes
- Odor of alcohol on breath
- Slurred speech
- Fumbling with wallet trying to get license
- Failure to comprehend the officer’s questions
- Staggering when exiting your vehicle
- Swaying/instability on feet
- Leaning on car for support
- Combative, argumentative, jovial or other “inappropriate” attitude
- Soiled, rumpled, disorderly clothing
- Stumbling while walking
- Disorientation as to time and place
- Inability to follow directions
(Some of the material above is reproduced courtesy of California DUI attorney Lawrence Taylor, author of DRUNK DRIVING DEFENSE, 5TH EDITION. Much of the material has been altered to reflect Massachusetts law.)