Regardless of the issue – DUI, traffic ticket, criminal offense – the question that I uniformly get asked is, “What do you think you can do for me?”, which is a less direct way of saying, “Can you get the charge kicked?” As it pertains to DUI charges, my answer is generally heavily dependent on my client’s conduct the night of the arrest. If I read the officer’s account of the chain of events that occurred that night and it includes failed roadside tests, a roadside breath test reading above the legal limit, and statements like, “Yes, I was drinking.” or “I had three or four beers, but I felt fine.”, then my job has gone from attorney to mitigator. I’d much rather be an attorney than a mitigator. Here are a few do’s and don’ts if you are arrested on suspicion of DUI in the Commonwealth of Virginia.
DO Be Polite and Cooperative with the Officer
In every single traffic-related offense, the judge will ask the officer, “Was Mr. Brown polite and cooperative?” The officer’s affirmative or negative response to that question can go a long way towards the severity of the court’s judgement. The more cordial you are with the officer who just pulled you over, the more favorable a result you will receive on your court date. This is one of many factors, but it is an important one. Always be polite and cooperative.
DO NOT Make Any Statements to the Officer Concerning Your Current Condition
Do be polite and cooperative with the officer, but do not answer any questions that may get you in trouble down the road. If he asks you, “Have you had anything to drink tonight?” Just reply that you feel uncomfortable answering that question without your attorney present or that you would like to exercise your right to remain silent. The less you say, the better off you will be if you end up in my office for a consultation.
DO NOT Take the Preliminary Breath Test
The preliminary breath test, or the PBT, is a tool the arresting officer may use during his roadside DUI investigation. The law in the Commonwealth allows the officer to ask the suspect to submit to a PBT as means of establishing probable cause for a DUI arrest. However, Virginia law also provides that the suspect may refuse to take the PBT and that refusal is not admissible in court as evidence of guilt if the case eventually goes to trial. Continue to be polite and cooperative with the officer and calmly inform them that you know it is your right to refuse to take the test. Refusing to submit to the PBT has zero legal consequences in the Commonwealth.
DO NOT Perform the Field Sobriety Tests
Like the PBT, field sobriety tests are another tool officers use to establish probable cause for a DUI arrest. The three tasks that most people are familiar with are the Nystagmus test (follow the pen with your eyes), the one-leg stand, and the nine-step walk and turn. Under Virginia law, submitting to these tests is purely voluntary. You are not required to do the field sobriety tests. If you do, and you perform poorly, the officer not only has probable cause to arrest, but the results of those tests are admissible in court. Again, remain polite and cooperative while you inform the officer that you are exercising your right to abstain from the tests.
DO Take the Breath Test at the Station
If the police find probable cause for DUI, you will be arrested and taken to the station where you will be asked to perform a second breath test. The Commonwealth uses the Intox EC/IR II breath test machine currently to perform this test. Unlike the handheld PBT, this machine is larger, looking almost like a mini-computer. Follow the officer’s instructions and take the test. By refusing, you will have a charge of refusing to take a breath test tacked on to the DUI charge.