DRUNK DRIVING
If I am stopped for a DUI, what if any test should I take?
» Field Performance Tests
There are a number of field performance tests that various police agencies administer. These include, among others: horizontal gaze; walking a straight line and turning; one leg raise, alphabet; etc. Do not take any of these tests. The police are looking for evidence to use against you. They are not really looking to determine if you are under the influence of alcohol. They have made that determination by your driving, your breath, your eyes, the smell of alcohol and other observations they make. The field tests just support their conclusion.
You do not have to take these tests. There is no consequence for your failure to do so, other than you will be considered uncooperative and arrested. They will likely arrest you anyway. Tell the officer you would like to do the tests, but your attorney advised you not to. Or, tell the officer you want to contact your attorney before performing any tests.
You must realize that likelihood of your passing these tests are slim. Also, the officer could put down that you failed the test, even if you felt you passed. Your word versus the officer’s is a losing proposition. Remember, you are likely nervous, tired and possibly under the influence. You have not done these tests before and are being judged by someone who has done and observed these over a thousand times. You are not likely satisfying the officer’s requirements.
» Breath, blood, or urine tests
There may be times where you will have no choice as to whether or not to submit to these tests. If you are unconscious, if you are transported for medical treatment, if the police obtain a search warrant and if you refuse to cooperate, depending on the jurisdiction you are in, you could be facing a felony. However, if you have the option to take or not take the test, there are a number of factors to consider.
First of all, always try to reach your attorney for advice. Make sure your attorney is familiar with these laws and the consequences to you for failure to take the test. Yes, you may lose your right to drive for a refusal, but often you can usually receive occupational privileges after a short suspension.
If you are unable to reach your attorney, you need to consider how much you had to drink before taking or not taking the test. If you believe you will be over the legal limit, likely you should not take the test. In Ohio, if you reach a certain limit, the penalties are enhanced, i.e., mandatory 6 days in jail versus 3 days in jail. You need to consider all of these factors before taking the test. If your test result is above the legal limit, it is likely the attorney’s options are limited. Unless the police did not follow the procedures properly, the test results will come in against you in court. That may be all that is needed to convict you of driving under the influence.
Should I allow the police to search my car or house?
The Constitution of the United States of America and of the State you live in provides that you are free from unreasonable search and seizure. There are way too many exceptions to the requirement that the police obtain a search warrant before they search your home or automobile that they cannot possibly be included here. Suffice it to say, NEVER consent to the police searching your home, your person, or your vehicle. Either they will do it without your consent or, if they believe it is necessary, they will seek a search warrant.
If you consent to the search, you lose almost all possibility of challenging the search. You could still argue that you did not voluntarily consent to the search; that you were coerced, etc., but your chances of success are slim.
If the police do conduct a search without your consent, at least you have the opportunity to challenge it in court. You may not win, but at least you have an issue that can be raised at the trial and appellate levels. It is important that you do everything you can to help your attorney and yourself. This is one way to do that.
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