Example: An officer sees someone swerving in and out of her lane on the freeway. It’s 2:30 a.m. Sunday morning. Cops thinks the driver may be drunk. The officer will pull her over and begin to ask her some questions like, “Which bar are you coming from?” How many drinks have you had tonight?” and “What did you drink?” When the officer is asking her these questions, the officer will look into the car for empty or open alcohol bottles, smell the driver’s breath for alcohol, and observe the driver’s eyes to see if they are bloodshot (all signs of DUI). The cop is building probable cause against you. If an officer, based on the initial stop, is not satisfied (he thinks he only has reasonable suspicion or weak probable cause) that he can arrest you, the officer will ask you to get out of the car.
Field Sobriety Tests (FST): Once you get out of your car, the officer will ask you to take a few field sobriety tests so you can “prove” you are sober. The officer will say something like, “I think you are drunk, but if you take and pass the FSTs, I will let you go.” DON’T. You cannot be forced to take FSTs. They are not pass/fail—they are subjective. Even sober people have trouble “successfully” conducting FSTs. Think about it: if the cop has strong enough probable cause to arrest you for a DUI, he will. He won’t waste his time doing FSTs for 20 minutes. He wants you to do the FSTs to build up his probable cause so he can arrest you and use it against you in court. Kindly decline to take any Field Sobriety Test.
Breathalyzer: The pre-arrest Breathalyzer test is the same as the FSTs. The officer will say something like, “If you blow below .08 I will let you go. It will prove you are innocent.” What the officer does not tell you is that even if you blow below a .08 the officer can still arrest you for a DUI. The results will only be used against you and will only be used to build up probable cause to arrest you. DO NOT TAKE THE PRE-ARREST BREATHALYZER.
Post-Arrest DUI: If you find yourself arrested for a DUI, the officer will tell you that legally you MUST submit to a chemical test to test your Blood/Alcohol levels. This is true. You have three options: you can either take a breath test (breathalyzer), a urine test, or a blood test. The officer will “suggest” the breath test. The officer will say something like, “The breath test is the fastest. And the faster you get done with everything the faster you go home.” While this may sometimes be true, the blood test offers some benefits that the breath test does not. First, a registered nurse or other medical professional must draw your blood. Sometimes, nurses are not on staff, and you have to wait a significant amount of time before your blood is drawn. This means that when your blood is finally drawn, enough time could have passed so that your BAC has dropped below .08. Second, blood results can be retested by an independent laboratory. Breath cannot. That means that if it is a close call (.09, .10), a retest may prove you innocent.
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