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Stopped for a DUI? Part II on What to Do

- by Ron A.Costeck

You are now in handcuffs and seated in the back of the officer’s patrol vehicle. It is official, you have been arrested for DUI. However, remember that law enforcement’s investigation is still ongoing. Everything you say and do will end up in the officers report under “post arrest investigation”.

Post Arrest Investigation The Ride to the Police Station

Whether you are seated in the back of the patrol car awaiting a tow truck (for your vehicle) or headed to the police station, the most important thing to remember is; remain silent. This period of time can be very emotional for a person. For the first time you have to pause to realize this is really happening. If this is your first time being arrested for DUI, you will be experiencing a high level fear as you are being transported to the police station or county jail. Emotional people usually make very bad decisions. So if this is your first time, let me help reduce some of your fears and concerns by giving you a quick run down of the likely scenario from this point on:

  1. You are going to the police station or county jail because the police officer wants to obtain a breath alcohol reading (Breath Alcohol Concentration Test – BAC test).

  2. The test is going to be administered in a small holding cell (not part of the main jail) or closet converted into a BAC room.

  3. You do not gain any favors by cooperating with everything the police officer asks you to do. In most cases you will just be damaging your case.

  4. In most situations you are being processed for DUI, they are not going to perform a prison strip search.

  5. The officer is going to check your mouth, read you your constitutional rights, “want” you to waive those rights, read you your implied consent warnings, “want” you to answer a few DUI questions, and provide a BAC sample.

  6. In most situations, at the end of the DUI investigation and process, you will be released to a taxi, a friend or family member.

  7. You will have a strong desire to get the DUI process “over”. You will not be listening closely to what the officer says or does. You will want to comply with everything the officer is requesting….”STOP IT — WAKE UP AND PAY ATTENTION!”

Mouth Check

One of the first things an officer will do at the station is ask you if you have anything in your mouth. He or she will then ask you to open your mouth, so that they can inspect and ensure that there are no foreign objects in your mouth. This mouth check most be done at least fifteen minutes prior to the administration of the breath test. Mouth alcohol can “spike” the BAC reading. Ensuring that you have nothing in your mouth that can absorb alcohol is part of the required and proper administration of the test. After checking your mouth the officer must keep you in visual range until you provide a breath sample.

In relationship to everything at the station, keep a mental note of when the officer checks your mouth. Make sure the officer is aware of anything in your mouth. Foreign objects can include chew, gum, tongue ring, etc. After the officer checks your mouth, if you should partially regurgitate anything from your stomach during the DUI process, make sure the officer is aware. Partially throwing up is not only related to alcohol, but can be caused by stress. It can also increase the BAC reading.

Constitutional Warnings

After checking your mouth, the officer will read and review your constitution rights. At the end of the constitutional warnings, there is a place for two signatures. The first place is for a signature that acknowledges that the officer read the constitutional warnings and you understood them. The second place for a signature will indicate that you are waiving and giving up your constitutional rights.

There is only ONE acceptable response. Stop your desire to move through the DUI process quickly. Inform the officer that you wish to speak with an attorney. Most attorneys will answer their phone 24 hours a day, in order to give emergency legal advice. If you have a decent attorney in mind, they will most likely answer their phone even if it is 2 AM. If you can’t reach your desired attorney, PLEASE, speak with the public defender who is on call 24 hours a day, seven days a week. You must make a clear expression of your desire to “speak with an attorney” and “not answer any questions”.

Please do not ask the police officer whether he thinks you should speak with an attorney. This is not a clear expression of the desire to exercise your rights. Hence you are not exercising any of your rights. Also, what do you think they are going to say?

Some of the things you can expect when you speak with an attorney, are:

  1. a review of your constitutional rights,
  2. a discussion of the facts related to your case an how they might apply to your decision on whether to submit to the BAC test,
  3. a review of the consequences of providing or not providing a BAC test,
  4. advice on whether you should answer questions or submit to a BAC test,
  5. they may document favorable observations for you (ie: no slurred speech, person appeared to have a clear understanding – an offset to the officers observations),
  6. they will be able to answer any additional questions you have, including but not limited to how this might affect your Washington, FAA or CDL license(s).
  7. If you can think of no other valuable reason to speak with an attorney….at least you will be burning off alcohol during the time of your discussion.
Implied Consent Warnings

Next, an officer will review your implied consent warnings. Everyone in the State of Washington who has a driver’s license is deemed to have consented to providing a BAC sample(s) upon probable cause for DUI, minor operation, physical control or commercial DUI. Notwithstanding, during the DUI process, a person can either provide a BAC sample(s) or refuse to provide a sample(s). The alternate decisions carry different consequences. The implied consent warnings are the State’s attempt to review the consequences of a decision to submit or refuse the BAC test and the impact it will have upon your license(s).

It is important to listen to the officer very carefully. If you do not clearly understand the possible implication(s) to your license(s) make sure you express your confusion to the officer. Failure to express confusion at this point will generally waive any legal issues about whether you knowingly and intelligently submitted or refused the BAC test. If you have questions, make sure you ask the officer specific question related to possible suspension of your license. The officer may answer your question, re-read the implied consent warnings again, or have you reading the warnings. Either way, pay attention to the warnings or answer of the officer, express your confusion, follow up with questions. It can be very confusing. If you still do not understand, don’t be embarrassed to ask the officer for clarification.

Implied consent warnings are often a significant issue in pretrial motions and department of licensing hearings. Many things can affect whether you make a knowing and intelligent decision to submit or refuse the BAC test. Things such as language and Q&A between yourself and the officer, can often lead to motions to suppress the admissibility of a BAC result. However, none of this will occur if you are spacing and just sign the form where the officer tells you. If you have confusion, I recommend that you marked confused on the signature line below the implied consent warnings.

DUI Questions and Answers

If you have already spoken with an attorney they have probably informed you “not to answer the DUI investigative Q&A”. What they are telling you is to exercise your right not to incriminate yourself. This is the best advice anyone can give! If you don’t think the questions are designed to incriminate you….let’s take a run at it:

Questions 1-4: deal with whether you have any physical impairments: if no, any irregularity in SFST, walking, standing have to do with intoxication

Question 5-6: deal with Diabetes/Insulin: if no, you have ruled out something that can affect the BAC reading

Question 7A-E: deal with prescriptions meds, drugs, etc: Is designed to have you admitting to anything that can intensify the effects alcohol or impairment.

Question 8A-B: deal with your vision: if no problems, you’ve ruled out issues related to the SFST and/or physiological symptoms of intoxication

Question 9-11: deal with work and sleep: if you are well rested all the observations must be related to intoxication. If you are not well rested you have contributed to your own problem with alcohol. Here, you are damned if you do, and damned if you don’t.

Question 12: admissions to driving

Question 13-14: Question related to your car. If there is nothing wrong with your car, then your driving and/or accident is related to impairment.

Question 15: Is designed to have to give up an affirmative defense to DUI

Question 17-29: Questions designed to get you to admit to drink, how much, where, etc…The answers will either prove that you are lying, prove that you drank too much or form the basis for scientific analysis of levels of intoxication

Question 30: My personal favorite – “do you believe your ability to drive was affected by your alcohol and or drug usage?”. Worn down and nearing the end of the DUI process, most people give up by this point and answer “a little”, “yes”, “maybe”, “I guess so”. This is a direct admission to the “under the influence” prong of the DUI statute. Game’s over. In reality most people answer this question affirmatively more out of the feeling…”well I must be, otherwise you (officer) wouldn’t have arrested me.”