One minute you’re in your car, driving home, not a care in the world. You’ve had a couple drinks at the bar, but so what? You feel perfectly fine, and you’re driving well. At least well enough. Maybe you ran that last red light – but it’s 3am. There’s no cars on the road.
Except there was one car on the road – the police car waiting at the intersection. And since it’s 3am on a Thursday night, he probably figures he’s got a good chance of pulling over a driver who’s had one or two too many. And guess what? He’s right.
Officer John Q. Friendly strolls up to your driver’s door, flashes a nice smile, and asks if you know why he pulled you over? Answer: No. Second question: Have you been drinking? Answer: No. Not a glass of wine with dinner. Not just a beer or two. The answer is no.
But it doesn’t matter how you answer. Because of the late hour of your minor traffic violation, he’s going to ask you to get out of your car and play a fun game he likes to call “Walk in a straight line and try not to fall on your face.” Everybody thinks they’re great at this game. Nobody is. But the truth is that it doesn’t matter. The sole purpose of this game is for the officer to build a case against you. Meaning the game is unwinnable.
So should I refuse to play this game? Tricky question. Refusing to participate in the sobriety tests, or blow into the handy portable breathalyzer that the officer presents to you pretty much ensures that you’re getting arrested. But guess what? If you’ve had more than a few drinks and are pulled over – you’re getting arrested no matter what you do.
So if you know you’re intoxicated, keep this in mind: you have absolutely nothing to gain from participating in field sobriety tests (“FSTs”), and blowing into the Portable Breath Test (“PBT”), which the officer WILL present you with. Bite the bullet, refuse the test, and face the reality that you’re likely going to jail tonight.
During the entire arrest, from the time you’re pulled over until you’re released, the officer is allowed to ask you three questions that you can’t refuse: your name, for your identification, and to exit the vehicle. Nothing else. You do not have to engage in conversation with him. The only statement you should make is a request to speak with your attorney. There is absolutely nothing you can say to the officer that can possibly help you.
Once you get to the station, the decision not to submit to Blood Alcohol Content (“BAC”) testing becomes more dire – a refusal to blow, give blood, or provide urine is tantamount to an admission of driving with a BAC of over .08, and could result in nasty sentencing enhancements (Vehicle Code § 23577). At this point in the arrest, there’s little to gain by a refusal. In addition, you’re preventing a clever defense attorney from accessing his bag of tricks (mechanical problems with the breathalyzer, Radio Frequency Interference, mouth alcohol, Acid Reflux Disease, etc.). In my opinion and experience, a refusal at the station is not a good idea.
DISCLAIMER: The information contained herein is for informational and entertainment purposes only, and solely reflects the opinion of the author. Nothing contained in this blog constitutes legal advice, or the establishment of an attorney-client relationship with any party.
-Louis V. Kosnett, ESQ