Advice for the drunk driver

It’s New Year’s Eve, and for me, that means one thing:  An increase of new clients charged with drunk driving.

I was never a drinker, and in fact, didn’t have my first sip of alcohol until way into my twenties. Even now, the most you get me to drink is a “girly drink” (as my wife calls them), and never that much. If I know I am driving, I don’t have any alcohol to drink, because I have seen too many lives ruined from drunk driving.police car

Sometimes the “ruin” is merely losing your license and paying lots of fines, fees, and lawyers costs, but I’ve also had clients who got into accidents that killed their passenger friends or others. It’s just not worth it.

But enough lecturing. Let’s say you don’t follow my advice, you have too much to drink, and you get pulled over by the cops. What legal advice can I give you?

First let me emphasize that I am not telling you how to get out of a drunk driving conviction. If you really are over the limit, face the penalty you deserve. You know better. But I have represented innocent people before who may have showed some signs but really were not intoxicated. I just won a trial this summer because the police could not meet their burden. So let me once more give this overall advice: don’t drink and drive, stupid. But if you do, don’t make it worse on yourself. Follow this advice.

Pull over as soon and as safely as possible. Make sure you park straight. Parking on a weird angle allows the officer to use that against you. (“He was obviously drunk because he parked at an angle to the curb.”)

Keep your hands on the steering wheel until the officer gets there. Don’t go for your wallet or open the glove compartment to get your registration. The officer will see “furtive movements” and may think that you’re hiding marijuana or going for a gun. You don’t want that. Not only will that put the officer on the defense, but it may give him or her a reason to ask to search the vehicle. Even if you have nothing to hide, you don’t want to be standing around for hours while they tear your car apart looking for nothing.

Once the officer arrives, open your window and let him or her know that you’re reaching for your registration and license and so on.

Be polite. Duh. Don’t argue with the officer ever. If you think you were pulled over for fake reasons, don’t bring it up. Let your lawyer do the arguing later; that’s what all that money you’re paying them is for. Say as little as possible about the situation (you can discuss the weather all you want).

Find out if you are being recorded. Many police cars have dashboard cameras these days. Those can help you. One of the reasons I won my case last summer is because of the camera. The officer said my client was slurring his words, stumbling, and acting intoxicated, but the video showed that he was not. (On the other hand, those videos have also helped the police to convict my clients as well. They’re useful because I can show them to clients who insist they were sober. “There’s no way you were,” I’d say as I show them the video. “We can’t win;  let me make a deal for you.”)

Let the officer know of any physical limitations you have. If you have a glass eye, make sure the officer knows you won’t be able to do that eye test they make you do. If you have a bad back, it could affect your ability to stand on one leg.

Always tell the truth! I shouldn’t have to say this, but people think if they lie, it will help them. It never does. “I only had one drink” when your Blood Alcohol Count comes out to .30% is an obvious lie, and when you try to take the stand to defend yourself later, the District Attorney is sure to say to the jury, “He lied about how much he had to drink so don’t believe anything else he said, either.”

That doesn’t mean you have to tell the truth. You have the right to remain silent. Do so!  Seriously, there is nothing you can say that will make things better. The officer has smelled alcohol on your breath, has watched you drive erratically, and otherwise has a good suspicion that you may be drunk. Don’t bargain, try to explain yourself, or offer sexual favors (Yes, I have had clients do that).

A quick aside: Remaining silent refers to incriminating yourself. You don’t have the right to remain silent when asked what your name is or where you live or basic questions having to do with identifying who you are. Cooperate fully with the officer for those purposes.

Agree to take the blood test. At least here in Pennsylvania, you don’t get to say, “No, I’d rather take a breath test.” You can refuse the blood test but then you will lose your license for a year even if you are completely sober. Almost every other state has similar laws. And almost every state is part of the “interstate compact” meaning if you lose your license in one state, all the others will enforce it in their state as well. It’s not worth it. Take the test. It may even help you if you really aren’t over the limit.

(EDIT UPDATE June 2017: The law has changed thanks to a recent Supreme Court decision. If this is your second or third DUI especially, you may be better off not taking the blood test. Refusal may mean you will lose your license for a longer time but it also means you may not have as much jail time. Find out what your local state laws are, or, better yet, don’t drink and drive and then you won’t have to even worry about this advice.)

Wait for the paperwork. Unless this is your third DUI or you have outstanding warrants, you will be allowed to go home afterwards. The paperwork will be coming in the mail. It may take weeks, and sometimes it has taken months. Don’t call the police and ask where it is — it’s not your job to bring yourself to trial. Feel free to call a lawyer, but most of us will say, “Wait until you get your paperwork” because we need to read the police officer’s version of what happened as well as to which charges were filed in order to best give you advice on what to do.

Remember: Just because you think you are sober doesn’t mean you are. Most drunks think they are perfectly fine. That’s why it is best that you don’t drink anything alcoholic if you are planning to drive.

Stay safe and have a happy new year!

5 thoughts on “Advice for the drunk driver

  1. question going to two things you raised above: I have some balance issues that pretty much guarantee I’d fail a field sobriety test, sober. Can’t stand on one leg, cant’ walk the straight line. If I KNOW that I’m innocent (haven’t been drinking at all). Wouldn’t it make sense for me to ask for the breathalyzer straight up?

    Liked by 1 person

    • If you absolutely know you have had nothing to drink, sure, but then again, the officer would probably not be asking you to do those tests anyway. The problem is with people who think they’re not drunk and demand these tests and thus incriminate themselves. You may be surprised at how few drinks it takes to reach .08% — I often hear “But I only had three beers!” from clients, and that’s often enough.


  2. Actually there’s a few things that can affect a breathalyzer even though you haven’t been drinking. Some gums and definitely breath sprays can spike the results. Police used to wait 30 minutes after a positive result and try again to allow anything that might be just on your breath out of it before getting a second positive but I’m not sure if they still do that.

    One thing I feel that should be pointed out (and again I could be wrong) is if a police officer asks if he can search your car, you can POLITELY say that you do not agree with a search to your car. DO NOT try to stop them from doing so but by stating it a couple of times for the record, it can help with any evidence found in it if later it is proven that there was no justifiable reason for them to have pulled you over.

    Liked by 1 person

    • The problem is that the courts have ruled that you have no privacy rights in your car. So if you say no, the police may just give up but they may also make you sit there for hours while one of them goes to get a warrant (if any states still require that — they just threw that out here in Pennsylvania).

      But yeah, it never hurts to say “No, I do not agree” because if there is a reason to challenge it later, it gets rid of the “But he gave permission!” defense the police will use.


  3. Someone told me once that if the police stop your car at night (for any reason) to always turn on the dome light and put your hands on top of the steering wheel. Police live in fear of being shot by someone, so if they can easily see in the car and see that you are posing no threat, it calms them down and puts them in a much better mood.

    I’m not sure how accurate it is, but I’ve used it about four times in the past ~30 years, and never gotten a ticket at night.


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