Episode 10: What To Do When.. You Are Facing a DUI.
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Welcome to What To Do When… a podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:29
Welcome back. What to do when a dummies guide to the legal verse brought to you by Critzer Cardani. Real talk. Real lawyers. Scott Cardani here today with you with Will Smith, here to talk about DUI. What is DUI mean Will, what is that?
Scott Cardani 0:55
So, what the heck’s that – a self administered intoxicant?
Will Smith III 0:58
Well, that is anything that’s not alcohol, right? Anything that’s going to alter your state of mind. So we’re talking drugs, we’re talking to marijuana, we’re talking prescriptions. I mean, anything that is going to affect your ability to perceive troubles on the road and operate a motor vehicle safely. Is going to be something that could get you in trouble.
Scott Cardani 1:18
Will and I’ve been doing this for a long time, me just a hair longer than him. But a lot of people don’t even know what the word stands for. DUI, what does it stand for driving under the influence. Driving while intoxicated, driving under the influence either one. There’s lots of variations. And there’s like what Will was saying there’s the ones that really don’t have alcohol to do, you know, driving under the influence. So, but it’s a really important topic. And so every DUI starts where Will? What happens first?
Will Smith III 1:47
Starts with the STOP. Okay, you got to be behind the wheel, and an officer has to see your car running, and starts with the stop.
Scott Cardani 1:55
So I want to explain that a little bit. Because this is really important. What if you’re in your car, it’s freezing cold, you’re at your buddy’s house, you take off, down and 711, you can’t drive and you pull over in the park and I decide to sleep it off?
Will Smith III 2:09
Make sure that cars off, right? Or the keys are out of ignition out of the ignition. I mean, that’s it that cars are operating the cars running it all.
Scott Cardani 2:16
Folks, if the keys are in the ignition, they can get you.
Will Smith III 2:21
Scott Cardani 2:22
So you got to be really careful with that. So if you make the smart choice not to drink and drive, make sure that key is out of the ignition.
Will Smith III 2:31
First thing I always tell people I mean, especially nowadays with, you know, Uber and Lyft, and all these other options. If you’re drinking or you think that you’re going to be drinking later on in your day, get a ride from somebody else not worth the risk worth the risk.
Scott Cardani 2:45
Let’s talk about that. So it starts with a stop, which is kind of funny, but I liked that play on words, what has to happen with a stop?
Will Smith III 2:53
Stop – well, the officer is going to come and you know, he will observe you and what he thinks to be an intoxicated state. Whether it be you know, glossy eyes are dilated pupils or anything like that.
Scott Cardani 3:04
What if you’re just driving down the road, how’s it going to know that any of that’s going on.
Will Smith III 3:07
I think that from there, what they’re really looking at is, you know how you’re operating a vehicle. If you’re operating in what seems to be an unsafe manner, they’ll stop you and start asking you some questions.
Scott Cardani 3:16
Kind of like if you cross over the centerline more than once, or you’re taking turns really wide and going off the side of the road. But also, what always amazes me that people get pulled over for DUI, they’re speeding. And I’m thinking why in the world if you know you’ve been drinking, you would be speeding.
Will Smith III 3:34
But I think that we all know also that alcohol is in drugs for that matter are going to affect your judgment. So I mean, you can’t really expect too much from somebody but I think that’s going to be enough for some for an officer to stop you and think well this person might be…
Scott Cardani 3:47
What about taillight?
Will Smith III 3:48
Same I mean, anything you know, without taillight I mean, headlight.
Scott Cardani 3:52
I remember the days when they pull you over for the the air freshener.
Will Smith III 3:55
I still have still happens. I mean, they’re looking for just about any reason they can, especially at night to pull you over.
Scott Cardani 4:01
So why we bring that up is, number one, you shouldn’t be driving if you’re intoxicated. But number two, you have to do something wrong for them to pull you over. They can’t just pull you over because you’re driving down the road perfectly fine. So that is key to understand. And why is that so important? Because if they have no reason to stop you, they can’t take the next step. And we’ll talk about those steps. But so first is the stop versus the pulling you over and saying, Hey, ma’am, I’m an officer. What’s their obligation at that moment Will? When that officer pulls them over, and we say this all the time at Critzer Cardani. But it’s really important.
Will Smith III 4:38
Well, you don’t have to say anything, you know, always advise everybody. You don’t have to make any statements that you know, against your penal interests against you know, the potentially incriminate yourself. And so I think that one of the things that we see right are especially when people have been drinking drugs, they want to say as much as they can, because they think they’re right then in there and they might be able to talk their way out of the situation. I mean, you keep your responses to a minimum and to answer the questions to the best of your ability, but you don’t have to say anything at all.
Scott Cardani 5:03
Folks, it’s like the old movies “license and registration, please”. I mean, they have the right to look at your license, they have the right to proof of insurance, and they have the right to see your registration, because you gave them that right when you got that little license, right. Other than that, you don’t have to talk and I tell people all the time, the best response, you can have variations of this response, but is, with all due respect officer, I’m going to get a lawyer involved, and I don’t think I should talk. And most officers understand that I don’t, I’ve never had a problem with Officer, you’re gonna talk to me, or you’re gonna, you know, in some do that.
Will Smith III 5:37
You might get that from a couple of them.
Scott Cardani 5:38
You might get it, but most of the officers are very respectful. And they’ll go, I understand what you’re doing. And that’s your choice. So, you know, when you get pulled over, really, I realized that your friend Bobby talked his way out of his DUI. But it is the exception, not the rule. And usually, anything you say can and will be used against you in a court of law. Anything you say usually is going to be the thing that they find you guilty.
Will Smith III 6:05
Scott Cardani 6:06
Remember, they have no evidence unless you give it to them. So that’s why we’re gonna get to this next thing. Next part of the thing, but so you’re pulled over, say, the officer comes to your car, we’re going to just take a scenario to kind of make it real for people. Sir, you were doing 51 and a 45. Okay, he’s got you pulled over. Is that a good stop Will?
Will Smith III 6:28
Well, I made sure it’s legal stuff. Absolutely. Okay.
Scott Cardani 6:32
So normally we see this “I didn’t mean to be drinking. You had one drink? You know….
Will Smith III 6:37
Everybody says they’ve had two beers. Yeah. Every person says that they’ve had two beers to drink.
Scott Cardani 6:42
So I pulled you over. And he’s gonna say, he may ask you, were you drinking tonight? Were you smoking tonight? Where are you taking drugs? Tonight? I used to have a friend who was in Hannover who asked everybody, he said, I smell marijuana. And he said about 95% of time they go, I’m so sorry. I was smoking. So again, those are all baited questions, you do not have to answer where you drink the night with all due respect, I’m sorry, I’m just going to contact my lawyer. Or if you say that up front, you don’t have to keep saying it over and over again. You can just not answer the questions. Don’t be rude. Don’t be dismissive, but just be Hey, I’m, I’m taking my constitutional right and holding on to that, and all is good. So comes to the window. And usually what happens is they have a smell of alcohol. And they say, Mr. Smith, have you been drinking?
Will Smith III 7:32
Don’t have to say anything.
Scott Cardani 7:35
I’m not answering that question.
Will Smith III 7:36
Scott Cardani 7:36
Right. So it sounds weird, but then he’s gonna go on to say, okay, that with your glassy eyes, and everything else may be a suspicion, what’s going to ask you to do next Will?
Will Smith III 7:47
Going to ask you to step out the car and perform a field sobriety test.
Scott Cardani 7:51
What is a field sobriety test really quickly?
Will Smith III 7:53
Field sobriety tests is a is a number of basic tests, you know, you’re talking about your ABCs, or counting or finger dexterity.
Scott Cardani 8:01
Most of you have probably seen something on the side of the road trying to touch their nose or something like that. Right.
Will Smith III 8:06
But they have some standardized tests across the state that will, based on the indication that they see will be able to determine whether or not they think that you’re under the influence of something if not able to complete what are somewhat similar, simple tasks, when, you know, when you’re sober. I mean, it can be difficult also, when you’re sober for some people. They’re supposed to be just tough enough that if somebody’s intoxicated, that they will show the signs of intoxication and have probable cause.
Scott Cardani 8:33
If you’re impaired, that’s what they’re meant to do. But do you have to do these tests?
Will Smith III 8:36
Scott Cardani 8:37
What Wait a minute, you don’t have to obey an officer beside the road, who wants you to walk 10 paces one way heel to toe and then touch your nose while standing upside down?
Will Smith III 8:47
You know? Absolutely. No, you don’t. And I think that that’s one of the problems that are things that people don’t realize is that they don’t have to do anything. They can just say, I am not going to take any I’m not going to do the test. Because it’s similar. It’s similar to any statements you’re making. I mean, they’re going to use that evidence that information from those tests that you perform, to say that this is the reason why I pulled this person over. That’s the reason they’ve been charged with with a DUI.
Scott Cardani 9:12
Okay, the next question he’s probably going to ask you is, are you willing to take a field sobriety test? What the heck’s that?
Will Smith III 9:18
Well, field sobriety field sobriety, right? It’s, you know, it’s these individual tests, but then…
Scott Cardani 9:22
I meant the other thing, and I said it wrong. I apologize. I’m at the breathalyzer. He’s gonna say, Where you blow in the breathalyzer, I apologize.
Will Smith III 9:27
I tell my clients, never when you’re on the side of the road, never ever blowing set breathalyzer. You don’t have to there. I mean, we’ll talk about implied consent later, right. You know, when you get down to a police station, and you have to blow or give up a blood sample, but never a good idea to blow on the side of the road, because what you’re really looking to do, especially if there’s a possibility, I mean, there’s plenty of people that drive and think that they’re okay, you know, don’t realize that it’s very low limit or very low standard in order to get right arrested for a DUI. So they think they’re okay. They say yeah, sure I will. And and that right there that 0.08%, which is what it’s one or two beers, right is enough to to you know, give the officer enough to arrest you that right then in there.
Scott Cardani 10:13
I tell people all the time this and I think it’s very important to know that even though you may not be suffering any effects of the intoxicant. That doesn’t mean you’re not under the influence by the law. And like Will said, it’s 0.08 in Virginia for alcohol. But the bottom line is, I tell people all the time, if you go to Hardywood, for instance, and you drink to their high powered beers and walk out 15 minutes later. Whether you’re feeling it or not, if you get pulled, you’re going to be under the influence. So you’ve got to know that and you’ve got to be what Will and I are trying to say here is, time is money in a DUI. The more you don’t do, the more your body has time to metabolize the alcohol in your system, that time is everything. So when you don’t do the side of the road test, and you don’t do the breathalyzer test it field sobriety test and breathalyzer test. The process is taking longer, they may have to get another officer involved, they may have to wait for somebody, all those things. I’m not saying that you won’t be arrested. And I’m, that’s probably hard for somebody who I can’t imagine being arrested, going to jail, it is better you go to jail for a night, then go to jail for a week. Or have a DUI conviction if you can avoid it. So the bottom line is, we’re telling you, it’s you shouldn’t be doing a field sobriety test, you shouldn’t be a side of the road breathalyzer. So if they get to this point in the process, if they still think they have probable cause, through your actions, or whatever it may be, they can arrest you.
Will Smith III 11:47
You certainly can. Yeah, and I like you said, I mean, I think that’s really hard thing for people to hear when you think about the inconvenience right of having to go down to jail and be there for the night and then have to call your mom or your dad and let them know where you are. And a lot of people just don’t want to do that. And like I said, I think a lot of people think that they can, you know, just talk their way out of situations, you know, but that I mean, it really is, like you said worth, you know, taking these steps to avoid hurting yourself down the line when you will ultimately go to court.
Scott Cardani 12:19
And it’s interesting with the advent of body cameras stuff, we get a lot of the video and I’ve actually had a case where the two officers are talking, because the person that car refused to talk them, they don’t really have anything to do anything on and they still arrest him. But that gave me the whole case, to beat it. Because then they didn’t have problems, they admitted they had no probable cause to arrest this guy, right? And so and they get very frustrated with the process, and it’s okay. It’s a very, very, very uncomfortable process to exercise your constitutional rights. That’s exactly what it is. It’s your right not to incriminate yourself. And we are not taught to do it. We don’t know how to do it, all those things. But that doesn’t mean we shouldn’t be doing it and shouldn’t learn and go through the process. And like Will said, unless you’re really wasted, they probably are not going to hold you if it’s your first DUI, they’re probably going to let you What do you have somebody come pick you up all those things. But if you have to spend the night in jail, you have to spend the night in jail. It’s worth it, especially if you believe and you know, you’ve been drinking. It’s not worth the DUI, just not because that extra hour to get you to the station to arrest you get an extra officer there transport you to the station have to set up. And you know, there’s a process that they go through there, don’t they? Yeah, when you get to the station?
Will Smith III 13:34
Yeah, there is. And I mean, when you’re down there, like I said, I mean, they have a much bigger, you know, breath test that you have to take.
Scott Cardani 13:42
The intoxilyzer 5200.
Will Smith III 13:47
And, you know, for that, I go ahead and blow, right. And at this time, hopefully, there’s been some time that’s passed. And you know, we haven’t talked about it yet. But you know, based on the level of alcohol in your system, you could get elevated time, right, get your license suspended for a longer period of time. So that’s why we’re not trying to blow on scene, you know, when you’ve ultimately have to blow when you get down to the police station. What happens if you refuse the blood police station? Well, then that’s when you know, like I said earlier, this is an implied consent state, which means when you get a license, you know, in your taking on the road, car on the road, you you’re consenting to any any breath tests that they ultimately administer, if they think that they have enough information.
Scott Cardani 14:31
They think that they have the probable cause and they’ve arrested you, you’ve already consented to that breath test. If you don’t, they’re going to charge you with the lack of consent. Right. And that’s a charge and I don’t want to get too much detail but that’s a charge that can be weighty and problematic and lose your license for a year.
Will Smith III 14:45
I think that that’s sometimes worse than a DUI.
Scott Cardani 14:47
Yeah – sometimes worse in the DUI. Will is there of course we at this point you you know, I’d like to talk to my lawyer but I know I have to blow so you blow but remember this. There’s a process they have to wait certain amount of time, once you sit down and have to clear everything give you time to process your breath. I think it’s 20 minutes. I sometimes get that wrong if I’m wrong.
Will Smith III 15:08
No, you’re right, you’re right.
Scott Cardani 15:09
But anyways, if you burp belch anything during that time, they have to start to clock over. So a lot of people are like trying to hold burps. And the best thing you can do is perfect. You got to burp, let it rip, let it go, let it go. Because again, that gives you another 20 minutes. And you know, quite frankly, 20 minutes in an hour is a long time for some, depending on your metabolism rate your blood, you know, some people, it’s not gonna help at all some people, it might be that one thing to take it from 0.08 to a 0.07. That’s right, you know, and so all those things, can they get you for a DUI? Even if you don’t? Blow?
Will Smith III 15:44
They certainly can. I mean, yeah, I mean, what we’re talking about, let’s say you just do your field sobriety tests, right? You don’t perform that test to their satisfaction, you know, talking about the heel, heel, you know, 10 step, turn and walk, you know, you miss a couple steps or you step off the line. I mean, they’re going to use that information in court to try to get a conviction to say this person was impaired.
Scott Cardani 16:05
So it’s that kind of like that we call the circumstantial evidence, what was going on with that person? Well, Judge I observed you had really glassy eyes, a smelled like a brewery. I mean, there are non alcoholic beers. But still, that’s a trigger. Smell like, you smell like a brewery smell like alcohol or slurred speech. Your eyes were droopy, you your coordination was off which the test is made to show your eyes aren’t tracking, you can’t get your foot to your heel or you fall over you stumble. I mean, I remember get I had a girl one time pull every Saturday in the body cameras on her. And I said it’s because it was kind of funny. They wanted her to do the field sobriety test. And she was in like four inch high heels. So she literally stands up on one foot, puts your other foot up to take your shoes off, bounces on a four inch high heel takes off one shoe bounced on the other take off the other shoe. And they asked like you don’t need to do that. Because she just beat the test. I mean, that’s what it’s about. If you can do that you’re likely not intoxicated. So sure all those things, but we get back here in the police station. You blow in the breathalyzer, after your wait period, after you haven’t burped all those things. There’s a lot of they walk you through everything. It has to be done, right. Follow their instructions to a tee don’t don’t get into this stuff of trying to be resistant and all that just follow their instructions, but they have to follow instructions. And that helps us if we’re your defense counsel, we look at that and say, Okay, did they do all the all the steps procedurally, right? Correct. Because if they don’t do one of those steps, procedurally, right?
Will Smith III 17:41
Gotta gap. They’ve got a hole in their case, right?
Scott Cardani 17:44
Can you ask for a blood test to set a blown?
Will Smith III 17:47
Yeah I mean, absolutely. And if you consent to a blood test, the warning that I give people is that they’re not just testing for alcohol, anything that you’ve done, will be in that in that test. And so, I mean, I have had a client of mine who waited and got the blood test, you know, they waited for the police to get a warrant, got the blood tests on his alcohol level had dropped below point oh, eight, it was point o seven. But they also found THC in the system. And so like I said, with, you know, any other self administered intoxicants, marijuana is going to fall, you know, under that umbrella. And he’s still, you know, was facing a DUI because of that.
Scott Cardani 18:26
Yeah, it’s really, it’s really important. If you really think, though, that you’re, you need that extra time, because again, they’re gonna put you in a police car usually take you to the hospital and get a blood test that time is money. Yeah. But as Will said, if you think you’re gonna get a cocaine charge, on top of that, maybe time isn’t money, you got to know what you’re doing. And I realized that you’re intoxicated, maybe at this point, and you don’t have a good filter. That’s why we’re saying do as little as possible, speak as little as possible. Most cases, this is a little dirty little secret, I’m gonna tell you right now, dirty little secret. Most cases are won by the Commonwealth or this police because somebody talked. Somebody gave them the information. Very rarely is it just such a great case that they can prove it without some kind of statement by you. Like, we always talked about this, and I’m just giving an example. Like speeding, the officer comes up to you. Do you know fast you were going? I was going 75. But, I wasn’t going 80. You just admitted to speeding by your own. You know, so, same thing with DUI. I only had two beers. Well, you just admitted you were drinking and driving. So you’ve already given them probable cause to arrest you. That’s right. So it’s so important your words matter. But the less the better. And it is okay. In the United States of America to say with all due respect, or however you like to phrase it say I’m just going to speak to a lawyer. I’m not going to talk right now or just say I’m going to exercise my right not to self incriminate whatever you want to say. Just say no, thank you. I mean, if you’re too nervous driving About No, thank you. That’s not Yeah. And you know, it’s not that they’re not going to keep trying. I mean, I tell people all the time, they may ask you 15 different questions. Right. And it is nerve racking. But you got to do what you got to do. And you got to hold strong. And it’s the most important part of your case.
Will Smith III 20:16
It really is. Yeah.
Scott Cardani 20:18
All right. I think that would be anything else you want to cover on this topic before we jump?
Will Smith III 20:23
No, I don’t think so. I mean, I think that we’ve covered pretty much everything leading up to the leading up to the arrest.
Scott Cardani 20:29
Yeah, I think I think what we wanted to say here is DUIs are important. You need a lawyer. Absolutely. You may not think you need a lawyer, but you need representation, Will and I handle a lot of these. We know what we’re doing. But you know, we’re the type of law firm. If you can find somebody else who fit with that, that’s okay. But get a lawyer. You need somebody to represent you. You need to know your Rights. And we need to look at all the evidence at all the steps and all the things that happen because even though you were charged with DUI, you may not be guilty of DUI. Yeah. And that’s so important that it’s protects you it protects the legal process. It protects other people. And it makes the process work when we do what we’re supposed to do. Which is…. “You prove the case, I’m not going to help you.
Will Smith III 21:16
Scott Cardani 21:17
Thank ya’ll for joining in.
We hope you’ve enjoyed this episode of what to do when for more episodes, be sure to subscribe to our podcast, and we encourage you to check our archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani
We hope you’ve enjoyed this episode of what to do when for more episodes, be sure sure to subscribe to our podcast and we encourage you to check our archives to listen to previous topics Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
We look forward to helping you in this venture and Good Luck!