RixPix Loc: Miami, Florida

My lawyer forwarded this to me....

With the holiday season quickly approaching, so come the invitations to holiday parties. Tis the season to celebrate, and also a time to be careful and mindful of drinking and driving. The best course of action is to avoid drinking when there is a chance that you will need to drive. Police are particularly aware of the season, and the fact that many people are celebrating. Choosing a designated driver or calling a cab is the best option when possible.

However, we all know that the situation may arise where a person must drive after consuming some alcohol. It is important to remember that it is legal to drink and then drive. It only becomes illegal if the alcohol (or drug) impairs the driver. We are ofter asked "what should I do if I am stopped for a DUI"? The answer has always been the same: it depends on the circumstances.

The investigating officer will request roadside sobriety exercises after the traffic stop and a breath/urine/blood test after the arrest. The general rule is that the more that you participate in the investigation, the more evidence that you are providing for the officer. There is no requirement to submit to roadside exercises (walking the line, finger-to-nose, balance, etc.) and there are no administrative consequences for refusing to complete them.

If there is ANY chance that you won't perform well, consider politely refusing to participate and asking to speak with your lawyer before you complete the exercises. You are not entitled to a lawyer at this point, but it should limit further questioning by the officer. Chances are, by refusing to perform the exercises, you will be arrested, spend at least 8 hours in jail, and then be given the chance to bond out of jail (traditionally $500, but it could be more or less). If you feel that you will pass the exercises, you can give them a try, but make sure that you advise the officer of any injuries or illnesses that might effect your performance. Remember, if you do not perform well, that will be used against you in court! It's easier to explain to a jury that you refused the exercises because you wanted to talk to your attorney first, as opposed to trying to explain why you couldn't walk the line, touch your nose or balance properly.

If a police office requests the breath/urine test, it is a requirement under Florida's Implied Consent Law. This law says that by driving in Florida, a driver agrees to take such a test if requested by a police officer. However, this doesn't mean that you have to take it. If a person refuses, there can be consequences, including suspension of the license. It's important to remember that failing a breath test (.08 is the limit in Florida) will also result in a suspended license. In most situations, a person is entitled to challenge the suspension (for a breath test or a refusal case) and hardship permits may be granted, subject to certain limitations.

Our opinion: If there is ANY chance that you will fail the breath test, politely refuse it, asking to speak with you lawyer first before taking it. You are still not entitled to a lawyer at this point, but it provides a good reason for not taking the test. It is easier to explain to a jury that you refused the test because you wanted to talk to your lawyer first, as opposed to trying to attack the credibility of the breath test result later. In Florida, a 2nd or subsequent refusal to submit to testing (breath, urine, blood) is a separate crime, so a person who has refused in the past needs to consider this when deciding to take or refuse a requested test.

Many of our clients refuse the exercises and chemical testing. They maintain their innocence, but chose not to cooperate with the investigation for a number of reasons (prior injuries, lack trust in police or breath machine, reliance on prior advice, etc.) Refusing does not mean that you are trying to hide something or are guilty of anything.

This summary should not be construed as a lesson on how to beat a DUI. It merely is an attempt to help you protect yourself if you are accused of a DUI. Remember, planning is the key to avoiding this type of a situation. Having a designated driver or calling a cab or a friend might be a decision that saves you a lot of time, money and stress and aggravation.

The content of this blog is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. DUI laws differ by jurisdiction, and the information on this blog may not apply to every reader. You should not take, or refrain from taking, any legal action based upon the information contained on this blog without first seeking professional counsel.

St3v3M Loc: 35,000 feet

How about Failure to comply with order or signal of police officer.
- http://codes.ohio.gov/orc/2921.331

Remoman Loc: Someplace Remote Near LA

Did not know you were in Ohio.

St3v3M Loc: 35,000 feet

I am sure Failure To Comply is similar enough in all states.

jadeast Loc: Virginia

if there's any doubt in your mind that you can't pass a sobriety test take a cab! a lot less hassle than trying to beat a DWI!!

Bmac Loc: Long Island, NY

Yeah, sure he did. 8-)

RixPix Loc: Miami, Florida

Actually he did this is straight from my lawyer and pertains to Florida law.

St3v3M Loc: 35,000 feet

Failure to Comply Florida Law
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0400-0499/0455/Sections/0455.227.html

Bmac Loc: Long Island, NY

Your credibility is zilch in my book. You don't even read the garbage you post.
Straight from your lawyer is it? Here is the last paragraph from the post your lawyer forwarded to you.



Give me a break, it's a cut and paste from a blog. Why lie when you don't even have to?? 8-)

Bmac Loc: Long Island, NY

By the way, the two paragraphs above contradict each other. Your blog doesn't give very good advice, no wonder there is a disclaimer at the end of the post. 8-)

ted45 Loc: Delaware

Maybe this is good advice in Florida but I doubt it. In PA if you refuse to take the field test you will be arrested and your bond won't be a mere $500. In some communities the cops mark the tires on the cars in the parking lot. If you exceed what they feel is a reasonable time in the bar they will approach you the minute you put your key in the ignition. Refuse the test and it's off to jail. They also arrest people who choose the "smart" way of getting home and start walking.

So I agree with jadeast, take a cab or do your celebrating at home.

DennisK Loc: Pickle City,Illinois

In Illinois,if you refuse a breathalyzer test,you will have your licenses suspended for 6 months.If you are really drunk,the legal advise is to refuse,as you will loose your license anyway and will be voluntarily giving the prosecutor evidence. If you are sober,take the test.
But that's just how it is in Illinois.Your mileage may vary.

Bruce with a Canon Loc: Islip

Best opportunity to pass a sobriety test is maintain sobriety.
Why on earth risk yoiur life and livelyhoood for a buzz at a party.
For my part, I simply wait and enjoy my libations at home where the worst infraction I can perpertate is a haangover.

Not saying everyone should follow this path, it is simply the path I have chosen to eliminate any possibility of being ev3n close to the BAC level.
"An ounce of didnt do it is woorth a pound of didnt mean it"

catsndogs Loc: prince george

As a person who drives for a living I find your message disturbing.

In the first place when many people drink they don't realize how impaired they are. Some people get impaired after one beer while others can drink a dozen. There is no time when a person “must drive after consuming some alcohol”. If your going to drink plan on a way home or walk.

Your statement “This summary should not be construed as lesson on how to beat a DUI” is laughable. Of course people who want to drink and drive are only going to read the top part and ignore the rest. That’s like teaching someone how to shoot another person and then saying I warned him not to do it. How are you going to feel if you hear someone from UHH gets in an accident after reading your post because they think they can drive and beat the rap.

Sorry if I sound pissed but I am. I saw a family of three killed by a drunk driver. I've seen other things but I think I hope I've made my point. I drive everyday and I see enough stupid drivers especially this time of year sober or drunk.

fotkaman Loc: Earth

You are both right, kind of. You don't have to submit to a road sobriety exercises (for it is inconclusive, such as impaired balance due to a medical conditions other than alcohol/illegal substance impairment), however, you MUST then submit to a brethalyzer or a blood test.