Let’s state the obvious: do not drink and drive. That way you will never have to worry about a DUI arrest. But with the BAC limit set at .08 and with aggressive DUI patrols and checkpoints out there, it is good to know what you should do if stopped by a police officer and that stop turns into a DUI investigation. (A couple disclaimers: This is not specific legal advice, but some things every driver should know. Also, this post applies to Delaware only–all states have their own DUI laws.)
The Delaware DUI law was a tough one to begin with, and the penalties were recently significantly enhanced. So if you are pulled over or stopped at a checkpoint, here is what you should know:
Fundamentals
- Always be polite and courteous to the officer.
- Never admit to drinking alcoholic beverages or give any kind of a statement. You have a right to (politely) refuse to answer questions.
- Do not help the officer prove his case against you.
- Easier said than done, but stay calm and do not let yourself be intimidated. You have rights.
- Contact Collins & Associates for an initial Consultation
Field Sobriety Tests
You have probably seen some poor guy on the side of the road trying to walk a line or touch his nose in the well-known procedures of field sobriety testing. These tests are extremely powerful in court. You will NOT pass these tests. Do NOT try these tests assuming you are not too drunk and you will do OK. You won’t. Do NOT believe the officer who says “OK, you are doing great, just a few more tests.” You are NOT doing OK.
Field tests were developed by NHTSA a long time ago. The tests are supposed to be predictive (not conclusive, but predictive) of impairment. Officers use these tests to “investigate,” but a better way of thinking of it would be that the tests are used to build probable cause to arrest you and have you brought in to take a BAC test. The tests include the walk and turn, the one legged stand, and the horizontal gaze nystagmus test (follow a pen with your eyes only). The officer also has a portable breath tester in the car. It is not very accurate so the results are not admissible in court, but the pass/fail result IS admissible when the officer is testifying in a probable cause hearing.
You should refuse to do the tests, politely. You have no obligation to do them. All they do is help the officer prove his case against you. If you refuse, then it is likely the officer will take you in for a BAC test anyway, but at that point the officer’s probable cause argument will probably be pretty weak. Unless you were found passed out with your car wrapped around a tree and an empty bottle of Jack Daniel’s sitting in your lap, the officer really needs the field tests. Do not comply.
Please note that field tests were tested on only fully healthy young adults (police cadets), so if you have ANY physical impairment (bad back, knee surgery, heart problem, etc.) then you must inform the officer of that fact and he is not supposed to even administer the tests.
BAC Testing
Most DUI prosecutions feature a BAC test. Normally it is a breath test using a calibrated machine (called the Intoxilyzer 5000). Sometimes it will be a blood test. This is the most crucial evidence against you. DUI is a “status” offense: If your BAC status is over .08, you are guilty. The State does not need to prove anything else, like intent.
What normally happens is that the officer will take you in for the Intoxilyzer test. If you refuse to blow into the machine, the officer has two options: he can either just arrest you and go forward in court without a BAC, or he can attempt to get a blood draw. This may involve bringing in a phlebotomist or taking you to a hospital. (It is not quite settled in Delaware yet, but a recent US Supreme Court case says that a search warrant is required to get your blood, UNLESS you consent.)
You should refuse all chemical tests. And if you refused the Intoxilyzer, then you should ALWAYS refuse to do a blood draw, because you have already been classified as refusing a chemical test. So never say no to an intoxilyzer and yes to a blood draw.
The penalty for refusing is that you will have your license suspended by the DMV for a year under our implied consent law. You do get a DMV hearing on that issue if you request one. (More on DMV hearings in a moment) But then again, if they get a sample from you and it is over .08, you are likely losing your license anyway. In our opinion it is better to refuse all tests. It gives you more legal options down the road.
After you are released from the police:
YOU NEED A LAWYER. DUI defense is complex. You need someone who knows exactly what they are doing. Contact Collins & Associates for a free initial consultation about your case. Also:
- Keep in mind that a DUI arrest results in 2 cases: the DMV administrative case and the court case. Do not get these two mixed up.
- If you are a Delaware licensed driver, they took your license and you have a temporary paper license. That license is only good for 15 days. YOU MUST call the DMV or go online to request an administrative hearing. DMV will extend your temporary license and schedule your hearing.
- The other paper you will have in your hand is a notice to appear in court. That is where things start to get complicated and you have various options. Do not miss any court dates, though, or the judge will issue a capias for your arrest.
Please feel free to contact us if you have any questions. We are here when you need us!