Depending on the laws of your state, a person is generally considered to be legally intoxicated if they have a blood alcohol content (“BAC”) of 0.08% or 0.10%. If a person chooses to operate a motor vehicle after drinking alcohol or consuming drugs that impair their senses, they may be:
A person who has been charged with drunk driving generally only receives a misdemeanor for their first offense; however, they can still be charged with a felony if they have injured another person or caused damage to property. They may also face felony charges if it was not their first drunk driving offense.
While most states will charge a drunk driver with a DUI, every state has its own criteria for what is considered to be a drunk driving offense, as well as different varieties of the potential charges that may apply. Drunk driving is more than a simple traffic citation; it is considered to be a criminal offense. As such, if you are convicted of a drunk driving offense, it will appear on your criminal record.
If a police officer suspects that a person is driving drunk, they will have probable cause to pull that person over. Examples include when they see that a person is speeding or swerving all over the road, or if they observe alcohol or drug paraphernalia in the vehicle.
After pulling a driver over, the officer will likely request that they step out of the vehicle to take one of the following tests in order to determine whether they are sober:
- Breathalyzer: This is a handheld device that measures the concentration of alcohol in a person’s system, by having them blow into the device. This test can be administered either at the scene where the car was pulled over, or at a police station;
- Blood or Urine Testing: This test requires a medical professional to conduct the testing and produce lab results; additionally, the police must first obtain a search warrant. As such, this test is not generally administered at the scene; and/or
- Field Sobriety Tests: These are commonly administered at the scene, and include a variety of different activities that are designed to test a person’s balance and agility. Examples include touching a finger to your nose, reciting the alphabet, or standing on one foot while counting.
If the driver fails any of these tests, the officer will have grounds to ticket and arrest them for drunk driving. Additionally, if a person refuses to perform any of the tests that can be administered at the scene, the officer can still arrest them if they suspect that they have been driving drunk.
It is important to note that things such as the smell of alcohol on a person’s breath or from open containers in the vehicle, even if they are empty, can be used as evidence to arrest the driver for drunk driving.
Should I Ask For A Lawyer During A DUI Stop?
If the police pull you over because they believe that you are driving under the influence (DUI), you may wish to ask to talk to your attorney. However, most states do not have a law that says you may talk to a lawyer just because you have been pulled over to be questioned by the police. This is because you are not technically in police custody at the time that you are pulled over on reasonable suspicion of driving under the influence. At that point in time, you are simply being questioned by the police.
While you may not be able to speak with your lawyer based only on being pulled over and questioned, you still have rights. As such, you are not required to incriminate yourself in order to reply to questions posed by the police. Additionally, if you are arrested, you will be able to meet with your attorney who can advise you when forming responses to police questioning.
Alternatively, your participation in the field sobriety tests such as those which were previously discussed, is not actually voluntary. This is because if you refuse, the police will likely ask you to take a test to determine your level of intoxication or your Blood Alcohol Content. Police also use other cues to assume intoxication, such as the dilation of your pupils.
You can still be arrested and charged with drunk driving for refusal to allow intoxication testing. In some cases, forced BAC tests may be conducted, especially if the driver under suspicion is injured and refuses a test. Most drivers are considered to have provided “implied consent” to the variety of tests described above as a condition of possessing their driver’s license. This is why refusing such tests may result in automatic license suspension.
While it is in your best interests to be as polite as possible, remember that the officer is looking for evidence to use against you.
What Constitutes Reasonable Suspicion?
It is important to be aware of what constitutes reasonable cause for the police to pull you over on suspicion of driving under the influence:
- Driving erratically;
- Driving excessively slowly;
- Speeding;
- Hitting objects with your vehicle;
- Stopping for no reason;
- Lane drifting; and/or
- Failure to signal.
This is not a conclusive list, as the police may pull you over for any reasonable suspicion of intoxicated driving. They may also pull you over for other issues associated with your vehicle, such as having a faulty tail light. This information is important because if an officer pulls you over without reasonable suspicion, your DUI case may be thrown out.
Once police have reasonable suspicion, they may pull you over in order to question you and administer tests. At this point, they must have probable cause to arrest; it is important to note that the standard of probable cause differs from reasonable suspicion, in that the police find that it is likely that you have committed the crime of driving under the influence.
Whether it is legal for you to be stopped at a checkpoint varies widely from state to state, as well as how frequently it is allowed. However, there are only twelve states which do not allow checkpoints at all. They are:
- Alaska;
- Idaho;
- Iowa;
- Michigan;
- Minnesota;
- Oregon;
- Rhode Island;
- Texas;
- Washington;
- West Virginia;
- Wisconsin; and
- Wyoming.
In states in which checkpoints are legal, police officers are still free to single you out in order to question you and administer sobriety tests. Rules dictating when you can ask for an attorney still apply; however, police cannot pull people over randomly whether for a traffic stop, reasonable suspicion, or DUI checkpoint.
When Should I Ask For A Lawyer During A DUI Stop?
If the officer has reasonable suspicion that you were driving under the influence, you will be arrested and transported to the police station or a hospital for a blood, breath, or urine test. Upon arrest, the police must read you your Miranda rights, which remind you that you do not have to say anything that may be used against you.
You should ask to speak with your attorney at this point. Depending on what state you live in, you may be able to meet with a lawyer immediately, or you may be required to wait until after you take or refuse to take these chemical tests.
Consulting with a DUI/DWI lawyer as soon as possible is advised. An experienced criminal defense attorney can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed.
