Drinking and driving can be dangerous, but not necessarily illegal. It becomes illegal if you are impaired to the slightest degree by your drinking, and/or your blood alcohol content (BAC) is above a .08. It is always safer to call a cab/Uber/Lyft after drinking rather than taking a chance by getting behind the wheel of a car. However, if you are stopped while driving after drinking, it is important to stay calm and remember your rights.
When stopped on suspicion of DUI:
- Hand It Over. Give the officer your ID, registration and insurance when requested.
- Have You Had Anything To Drink Tonight? The officer may say, “I can smell a little alcohol on your breath; have you been drinking tonight?” You don’t have to answer this question. You don’t have to tell an officer where you’ve been, where you’re going, or how many drinks you have had. Do not answer the officer’s questions beyond your name and information on registration and insurance. Remember, you have your 5th Amendment right to remain silent, even before you are “read your rights”. It is uncomfortable to tell law enforcement “no”, especially when their approach is friendly and chatty (or especially if it’s not so friendly). Be ready to politely say no to questions. Be ready to continue to politely say no. You can and should respectfully decline to answer questions.
- If Asked, Do This. If the officer asks you to step out of the vehicle, you should comply and ask to call a lawyer. The officer must give you time to call a lawyer as long as you are not delaying the investigation. This is probably not a good time to research “Tucson DUI lawyers” on your smartphone- consider having a phone number ready in your contacts.
- No Questions, Please. The officer may start asking you a series of questions, including, are you under a doctor’s care, do you have any medical conditions, are your shoes comfortable, do you know where you are, what time is it, on a scale of 0-10, how intoxicated would you say you are, where are you coming from/going to, etc. Do not answer these questions. These questions are a pretty good indicator that the officer thinks that you are driving under the influence.
- No Tests! Do not perform any tests. Often an officer will start giving you directions to tests without telling you what you are doing, or why—they will probably not even tell you they are tests. There are a number of different tests—for example, the HGN (eye test), the walk and turn (walk in a straight line, heel-to-toe), and one leg stand (stand on one leg with the other raised six inches). If an officer says, "I need to make sure you are ok to drive", they are about to give you a test (or a lot of tests). Inform the officer that you will not consent to any of these tests. You do not need to explain why.
- No Breath Test Until You Have To! The officer may ask you to breathe into a small hand-held machine. This measures the amount of alcohol in your blood, and you are not required to do this test (the results are not accurate). Again, the officer may say, “Just breathe into this so I can make sure you are okay to drive”. Don’t.
- Okay, NOW You Can Breathe. If the officer decides to continue with a DUI investigation, they will read you a form called “admin per se" and tell you that you must either blow into a breathalyzer (much larger machine than the handheld one; it is inside the police car) or provide a blood sample. The officer will warn you that if you do not, your license will be suspended for a year. You should comply and submit to the breath or blood test. If you do not, your license WILL be suspended for a year. If you refuse testing at this point, law enforcement will just call a judge and get a warrant to take a sample of your blood. There’s no reason to lose your license for a year when they will collect the evidence anyway.
Remember, you have the right to remain silent. Use that right. Anything you say or do will be used against you—law enforcement, when conducting a DUI investigation, is not looking for evidence of your sobriety. They are more likely looking for evidence that supports a suspicion they already have. Be polite and respectful to the officer, but do not answer the officer’s questions. All you need to provide the officer is your name, your license, registration, and proof of insurance. You can request to speak with an attorney at any stage of the investigation. Law enforcement does not have to provide an attorney to you, but they do have to give you reasonable access to the advice of a lawyer. Be aware that not all criminal defense or DUI defense lawyers answer their phones 24/7. If you can’t reach someone immediately, leave a message, and continue to respectfully decline to answer questions or perform any tests (except for a breath or blood test after the “admin per se” form is read).