The 1st in a series, next time: A Cops’ Thoughts On DUI
Fred Dry is a friend and client of mine. Ferrari owner, amateur road racer, and criminal attorney, I asked him to give us his thoughts on DUI traffic stops.
You’ve had just one drink. You know you are not drunk! You are stopped for a minor infraction and the officer asks if you’ve been drinking. He is asking because he believes that he smells alcohol! Maybe he already thinks you are drunk because of the violation and the smell alone.
If you admit drinking you are telling the truth. If you deny, it will be considered a lie if the officer says he smelled an odor of alcohol. Is this lie the result of a guilty conscience or just fear of the possible arrest you are now imagining? If you remain silent, the officer could treat it as a lie or otherwise hold it against you.
Depending on your overall demeanor and level of cooperativeness, you may then be asked to take Field Sobriety Tests or a Portable Breath Test. Field Sobriety Tests may include :
- standing on one foot while counting (one-leg stand)
- walking a line (walk and turn)
- following a moving pen with only your eyes (HGN)
Photo courtesy Jema Grey
These are tests that police use to try to determine if you are drunk. Essentially, they help the officer form an opinion or justify an opinion already formed.
You will be asked to take these before being arrested. Your performance will be evaluated by the officer according to certain standards. He is expected to give you verbal instructions and demonstrate the test. All of this happens on your way somewhere, likely at night. The lights on the police car are flashing. You have realized by now that you are being investigated on suspicion of drunken driving. Even if you are sober, can you absorb the information and perform under these circumstances?
There are reasons, other than concealing intoxication, not to take the tests:
- Some people may be too old.
- Being 50 or more pounds overweight can be a disqualification.
- Prior injuries can significantly interfere with one’s ability to do these tasks as well.
If you take the tests, even if there is a legitimate recognized reason to decline, other than concealing impairment, the officer will make an evaluation of what he observes against the known standards. He will not grade you based on discounted expectations. If you are arrested without having taken Field Sobriety Tests, even if it is because you refused to take them, there will be less evidence to justify your arrest or prove guilt.
If you take these tests, the officer’s opinion about your performance will become evidence against you, both to justify the DUI arrest and prove your guilt. This is the law.
- The law in Illinois also allows a person to refuse to take them.
- In Illinois there is no penalty for not taking these tests.
- You are permitted to refuse these tests.
- Contrarily, the result of a Portable Breath Test cannot be used to prove your guilt. It can only be used to justify your arrest. This is because it is not considered to have sufficiently reliable results to prove guilt. There is no penalty under Illinois law for having refused to take a portable breath test.
Thanks, Fred, and reach him at: www.freddry.com