When people learn I represent drinking drivers, this question often comes next: What should I do if I've been drinking and get pulled over? My reply involves taking all necessary precautions to prevent a traffic stop and include:
1. Make sure your vehicle and you are legal. First, inspect your vehicle. Make sure you are not driving a vehicle with an expired registration. Make sure you've placed the registration decal on the license plate. Check your head lights, brake lights, blinkers, license plate illumination and muffler. When driving, get in the habit of using your turn signal so you'll keep up the habit late at night. I even use my signal to turn into my driveway. You should too. I've seen hundreds of late-night stops for “failure to use turn signal.” If you will drink and drive, obey all traffic laws, including the speed limit. Speeding is not one of the clues law enforcement is trained to look for in a drinking driver, but it'll get you pulled over, which is exactly what you don't' want. Remember: drinking drivers are often stopped for reasons other than suspected drunk driving.
2. If you are going out with a group, get a designated driver who won't drink. Offer to buy the designated driver dinner. Find a really kind pregnant lady. Just joking. But do whatever it takes to keep yourself out of the blue lights. If you can't find a non-drinking driver, call a cab. If you live in a small town like me, plan ahead by scheduling a cab in advance.
3. If you've been drinking responsibly and get stopped anyway, watch the hole under your nose. You know, the one with which you kiss your mother. After a traffic stop and before arrest, the officer is in investigation mode. He or she does not have to provide Miranda warnings. All of your responses are admissible in court. Everything you say will get used against you and may be on video. If the officer smells the odor of an alcoholic beverage coming from you vehicle, he or she WILL ask you if you've been drinking. An affirmative answer will get you the chance to perform in the Roadside Olympics. A negative answer will get you berated as a liar until you change your story in which case you will be proven a liar. Be creative here without lying. “Thank you for your concern officer but I don't know you and I don't talk about my lifestyle choices with strangers.” Also, if you've been drinking, it's not in your best interest to reveal to the officer your bodily content of prescription drugs. You can be arrested for driving under the influence of alcohol and prescription drugs. Many prescription drugs warn of operating a motor vehicle after ingestion.
4. In Kentucky, if you've been pulled over and the officer suspects you of drunk driving, you may be offered a preliminary (or portable) breath test (PBT) at the site of the stop. You are not required to consent to the PBT. If you do, the officer is not required to tell you the result (or number) you blew. It's only admissible in court to show the presence of alcohol. If you've disregarded my advice and admitted to drinking, take it to get an estimate of your breath alcohol content, but only if the officer agrees to advise you of the number. Otherwise, refuse it. Your refusal won't keep you from getting arrested, but it will be one less thing your lawyer must worry about at trial.
5. If you are arrested you will be taken to the jail for a breath test or a blood test. The McCracken County Jail employs a registered nurse to extract a blood sample. Other local counties may take you to a local hospital for a blood test. If you have a prior DUI conviction within the last five years, it is an aggravating factor to refuse a chemical test. An aggravating factor doubles the minimum jail sentence. Neither breath tests nor blood tests are 100 percent accurate. Both can be wildly inaccurate, but the Kentucky State Police (KSP), the agency charged with maintaining breath testing equipment and the Commonwealth's crime labs, will never admit it. If you refuse to submit to all chemical testing requested by the arresting officer, your driver's license can be suspended at your first court appearance. The length of the pretrial suspension varies with the number of DUIs you have been convicted of in the past five years. First offenders can be suspended for up to 120 days. Since I can't advise you not to take chemical tests, this is your decision to make depending on the facts. I can advise you trials without a number are more often won than trials with a number.
6. If you're not a drinker, but you have smoked marijuana before driving, you've made a bad choice. You can't get toasty and drive in the Commonwealth. However, if you only have marijuana in your system it makes it more difficult for the prosecution to get a conviction. Experts vary on the marijuana needed in your blood to make you “under the influence.” If this is your only vice, seriously consider consenting to all chemical tests offered by law enforcement.
7. If you will drink and drive, do your homework. Find the location of roadblocks or as law enforcement calls them, “traffic safety checkpoints” in your area. The KSP must provide the locations to local media. Call the newspaper, television station or local radio station and ask them to share. Call the local KSP post and ask the public information officer to share.
8. Didn't your mother tell you nothing good happens after midnight? This goes double for drinking and driving. After midnight, law enforcement posts up outside local clubs and restaurants waiting for irresponsible drinking drivers. Get the designated driver or the cab ride scheduled, if after midnight you're going to “chug-a-lug and shout.”
9. Ladies and gentlemen you are looking live at the Roadside Olympics. Don't consent to what law enforcement calls, “field sobriety testing” (They are requested in the “field” but have nothing to do with “sobriety” or “testing.”) These optional exercises divide your attention. You are asked to follow about 30 instructions each on the one-leg stand and walk-the-line routines. If you are determined to enter the Roadside Olympics, go for the gold. Do your homework. Google “field sobriety tests” so you'll know what you are supposed to do and how you'll be evaluated. Practice the tests. Tiger Woods didn't stripe a 300-yard drive right down the middle the first time he picked up a golf club. If you have physical limitations because of genetics or prior injury, politely decline to enter the Roadside Olympics. Again, refusing to enter the Roadside Olympics won't prevent you from being arrested, but it will prevent introducing faux evidence of intoxication at trial.
10. Finally, if you are arrested, exercise your right to remain silent and call me when permitted. I can be reached 24 hours a day from my office number 270-442-9268. If it's after office hours, let it ring until I answer. My phone system is designed to find me.