Attorney Adele Drumlevitch

What Are The Common Mistakes Made In DUI Cases?


The most common mistakes when dealing with DUIs is the more you talk to law enforcement, the more ammunition you are giving them to use against you. The reason I say that is there are certain things that I cannot tell you to say or do. You do not have the right to refuse. You have the power to refuse. You have the power to refuse to take certain tests or to submit to certain field sobriety tests. For example, you have the power to say, “I am not going to do that test, I am not going to blow into the machine, I am not going to answer your questions” but you do not have the right. The law says that you need to comply, and you need to submit. For me, it is hard to say do not do something when there might be a legal requirement that you do it, or at least you need to submit.

You need to cooperate. By getting your driver’s license, you have quietly agreed that you will submit to chemical testing if it comes down to it. If the officer asks you because he says he has reasonable grounds to believe you are driving, have physical control and you are under the influence of alcohol or drugs. Therefore, there is a point where the officer has a right to ask you. I am not going to say this is wrong, and I do want to say it is a mistake because certain areas of the law, you are required to do those things or you have already agreed to do those things. A case just came out in October that seems to be stretching that some things now are considered search incident to an arrest, which before it was not categorized that way.

If an officer has a right to do a search incident to arrest, that is his right to do that. However, you do not necessarily have to agree to it, and you do not have to go along with it. So for example, if it is blowing in the machine, and if you say “No, I am not going to blow”, you have the power to say, “I am not going to blow”. Nevertheless, here is the downside, the officer can then get a search warrant or try, I should say he will try to get a search warrant, and then they will do a blood test. It used to be that if there was a search warrant, they were going to get your blood no matter what. If the search warrant was granted, they would get your blood, they would hold you down; tie you up, whatever they had to do to stick you with the needle. Some of the agencies around here have changed that policy, and if somebody did not want to voluntarily allow the blood draw, then they would not stick you.

They would have a warrant and say, “We need to take your blood”. If somebody says, “No, I don’t want it. You are not going to stick me with the needle”, they would not do it. They would issue you another charge of disobeying a court order. A few months ago, they changed their policy again. So if you refuse to be stuck with a needle after they have obtained a search warrant, they will anyway. Apparently, I have not had one go far enough to use force, but supposedly they will. Even if you say, “I am not going to do something”, it might still happen. I do want to say if you do not take the breath test, what are they going to do? They are not going to be able to stick a tube in your mouth and sit on your chest to force the air out of your lungs. That will not to happen.

If you do not cooperate, they are not going to get a breath test, but they may go on to the next step. They may try to get a warrant, and I believe when they try to retain a warrant for that DUI, I am going to guess one hundred percent of the time; the judge is going to give them a warrant. I am not saying any particular judge, but I cannot remember ever having a judge so no to a warrant on drawing for blood. If you do not comply, and refuse, if you say, “I am not going to do the breath test”, or, “I am not going to do your blood test”, you are going to lose your license for one year.

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If it is your second in seven years, and if it is the second time you are refusing in those seven years, you will lose your license for two years. Even though you have a power for non-compliance, there are going to be consequences. The officer might say, “Let me look at your eyes”, and you do not have to let him, or you do not participate in that field test, or any field-testing. You do not have to do those tests, but everybody does them anyway. I am not saying do not do them. I have noticed some people will not be arrested if they take the tests, they performed them satisfactorily, and the officer lets them go.

Unfortunately, for the large percentage of the population that does submit to those tests, they will be arrested for that DUI. People think they will do well on the tests, so they figure “I am not drunk”, or, “I am not falling down drunk”, and they do the tests and they do not realize there could be operator error or the machine malfunctioned so the officer thinks that person is impaired. The officer looks for cues of impairment, and it does not take much. The person does not realize it like walking on a tightrope, you did a test, but you thought you did it well, now the officer has you marked as failing each test, he found every mistake possible, and so you will be arrested.

People give the officer a lot of ammunition by submitting to these tests, and answering their questions and sometimes not even truthfully. Sometimes people change the truth because they think it will help their case and sound better. They will deliberately say something that is not the truth because they think it sounds like a better answer. I am not saying do not participate because if you do not follow certain rules when it is time for the chemical test, there will be strong consequences against your license, they will very likely get a warrant and take your blood anyway.

The other thing is if it is deemed a refusal, they can use it against you in trial. If you are not submitting to any tests, physical sobriety tests, it is up to the jury to decide whether you refused or not. It is not that the officer says you refused; it is the jury who decides. The officer can say, “I explained that there were some tests for this person to take. I said let me demonstrate, I demonstrated. I said here is the instructions, do you understand? The officer said, ‘I won’t take your tests’, or the person pretended like they couldn’t hear me, or the person sat down on the ground, the person didn’t stand up so that they could do the tests and I kept asking will you take the tests, or they just kept saying ‘No, I won’t.”

They should not be saying the person refused the test, which is a specific term that the jury has to find. However, I can tell you if an officer said those things. The jury would more than likely believe that the person “Refused” the tests. Therefore, they can use your refusal as case law, and they can use it in certain things that are deemed a refusal against you. It shows there is case law that says admission; it is like an admission of guilt. For example, you do not do it because you have a guilty mind, you have a guilty mind, a guilty conscience, and that is why you are not submitting or doing something. When it comes to the chemical test refusal, the officer is not the one that is deciding if it a refusal, it is the jury that decides, and did the person actually refuse the chemical test.

The officer can say, “I read the person the warnings, I read them all the warnings and they said ‘I am not taking your stinking test’, or, ‘Over my dead body. I am not blowing into that machine, you can kiss my butt’,” whatever they say. The officer will say, “This is what was said and I gave them the next warning, ‘Are you sure you won’t let me take it, you’ll lose your license for a year’, and they said, ‘No, I am not taking it, I am not taking your stinking test’,” and then the final warning, “If you delay, it’s going to be treated as a refusal”. Therefore, the jury has to decide is it a refusal, but again, that will not show that sort of consciousness of guilt. They knew that they would not get a good reading.

Those are some mistakes that are made, and I am not saying it is a mistake, but people think if I cooperate and I do everything, I am going to prove to this officer that I am not impaired to the slightest degree. They are surprised that they are being arrested, maybe if they are lucky, they are going to get a ticket and they get to go home for the night, but otherwise, they will be booked, and they do not understand why. There are very serious ramifications if you do not cooperate. This can have effects on your case later in court and your ability to drive. People say things that are deliberately untrue because they think it is going to help their case. For example, they want to put distance between themselves and drinking, and they will say, “I stopped drinking 2 or 3 or 4 hours ago” when really they had a drink on their way out of the bar.

They slammed one down and walked out of the bar and they were stopped ten minutes later. What I want to say is they want to distance themselves through the drinking, because they think it sounds better when in reality, they just consumed alcohol right before they got in their car. It normally takes the average person one hour to fully absorb alcohol. You will be at your highest point an hour later from ending your drinking. People do not realize that it would have been better to say, “I just slammed one down” because that might be what put you over the limit. It was probably that last drink that puts you over or could have put you over the limit, and it depends on what your limit is, what your chemical reading is.

That could have been what puts you over, and it does not mean you are going home, but it means the defense is trying to convince a prosecutor, “Look, they were under the limit at that time and it was that last drink that kicked in”. If somebody has a high BAC, which is called Blood Alcohol Concentration, I am not going to be able to sell that to the prosecutor if his or her levels are high. If it is marginal and they are barely over the limit that is something that is not a defense in court. It is something where I might get rounding points with the prosecutor. I just wanted to point out that people do not realize they hurt themselves by putting a time frame between when they finish the last drink, and when they get in their car and drive.

For more information on Common Mistakes In DUI Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (520) 357-4746 today.

Call for your free 20 minute phone consultation with Adele - Call now (520) 357-4746.

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