No one goes out and expects to be pulled over for a DUI. It’s not something that the average person plans for. We may go out and have a drink or two over a couple of hours and many folks think that it’s okay to drive after that. In fact, for some people, it is perfectly legal to do so. Despite common belief, Arizona is NOT a “zero tolerance” state.
I’ll say it another way. It is not against the law to have an alcoholic drink and drive a motor vehicle. I’ll pair that with a very important caveat; it is against the law to drive or be in actual physical control of a vehicle while impaired by alcohol to the slightest degree.
Impaired to the Slightest Degree?
What does “impaired to the slightest degree” mean? That’s a great question and it has the usual lawyer answer of “it depends.” What I mean is, the answer is not exactly clear. There are many factors that are used to determine impairment of alcohol or drugs, and when police officers are conducting investigations, they are generally looking for any sign or symptom that you give off that could possibly be used to say that you are impaired. Your interactions with law enforcement during a stop matter… a lot! Ultimately, it could be up to jury to decide what “impaired to the slightest degree” means.
That brings us to the question of, “what should I do or don’t do if I’m stopped by police and a DUI investigation occurs?”
First step, any time police turn on their lights and/or sirens, you need to safely pull off to the right and find the nearest place to safely stop. While you are doing this, it is important to still obey all traffic laws. Use your blinkers, watch for other cars, and be aware of the current traffic conditions (such as construction zones).
Secondly, do not answer any questions from the police that could be used against you—and this can be a tough one to think through. For example, “where are you coming from?” If the place you are coming from could in any way whatsoever be imagined having alcohol, it will be assumed so by police and used against you in court. Answer the officer’s questions to the extent of identifying yourself and providing the information required by law—that’s it! This applies throughout the entirety of the investigation.
Officers will often press you if you do not answer questions or help them gather evidence against you. Immediately request a private phone call with an attorney.
Third, when asked to step outside of your vehicle, do so in a way that is graceful. Otherwise, it will undoubtedly be used against you as proof of impairment. Remain polite with police. Being confrontational can often times escalate the situation and lead to more serious charges—even if you are 100% in the right and are not guilty of any crimes. Trust me on this one.
Remember, almost all law enforcement these days wear body camera and the footage is capturing how you behave—and how they behave. We may need to show that to a jury someday…
Field Sobriety Tests
Police will first ask you to do field sobriety tests; should you take them? The answer to this is a delicate one, so I’ll put it as lawfully as I can. You do not have the legal right to refuse a field sobriety test but police cannot, and will not, force you to conduct them. Further, there are no legal consequences for not participating in field sobriety tests. They are tests that are near impossible to do well on. I have tried them at home after a few drinks and stone cold sober—I do just as well on the tests either way. No matter what, they will be used against you.
Portable Breath Test
After the field sobriety tests (or lack thereof) you will be asked to blow into a handheld breathalyzer (portable breath test). This almost always occurs before you are placed under arrest. The same theory applies as the field sobriety tests above. I’ve had clients that blew below a .08 (the legal limit in Arizona) on the portable breath test and it was still used against them in litigation. I’ve seen the instance where a person blows .000 on the portable breath test and is still arrested because police are sure the person is impaired by something else. The overwhelming evidence shows, doing this test will not help you.
Importantly, do not confuse this portable breath test with the test at the station or DUI van. These are very different tests, and you need to talk to an attorney before refusing or consenting to any chemical tests. The test at the scene and the tests at the station or van are very different. Refusing the tests after arrest could have consequences. Again, talk to an attorney before submitting to any chemical test.
Request a Private Phone Call With an Attorney Immediately
After you are placed under arrest, you need to request a private phone call with an attorney (my number is (480) 363-0090, save it in your phone right now) Yes, often police will give you access to your cellphone. This is a very important step, because what happens next is highly determinative on a case-by-case basis. You need to talk to an attorney so that they can question you on the situation and properly advise you on next steps.
Do Not Drink and Drive, But Know Your Rights
Let me be clear – DON’T DRINK AND DRIVE. With the advent of Uber, Lyft, and other ridesharing apps—there is simply no excuse at all (not that there ever was). That said, know your constitutional rights, don’t help police and prosecutors prosecute you, and save my number in case you or a loved one is ever facing criminal charges (480) 363-0090. Calling a DUI attorney during the investigation process is much more beneficial than calling one after the fact.