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DUI: What to do if you’re stopped

Tom Anelli is the “DWI Guy” and founding attorney of Anelli Xavier, P.C. You can reach him at www.anellilaw.com.

Choose not to drink and drive

Holidays are often centered on drinking, with parties typically filled with a bevy of alcoholic beverages. More often than not, people drive to these parties and don’t have convenient alternate transportation to get home. With the holidays soon upon us, it's imperative to have an understanding of your rights and a brief overview of issues people face when pulled over for driving under the influence (DUI) -- and what your big-picture smartest course of action is.

Glass of wine and keys

Holiday drinking can get you pulled over

If you are stopped for driving while intoxicated while coming to or from a holiday party, understand that there is no legal requirement for you to take the field sobriety tests on the roadside. Should you decide to take these voluntary tests, you may unnecessarily implicate yourself (due to health reasons, footwear, uneven surfaces etc.), whether you are intoxicated or not.

Holiday drinking may lead to your arrest

If you refuse the field sobriety tests, you will likely be temporarily detained for the purpose of taking a Breathalyzer test at the police station, but it is generally better to refuse these tests and ask the officer politely if you may speak with an attorney before answering any questions.

You can lose your license if you refuse a Breathalyzer test

Furthermore, if a DWI/DUI suspect refuses to submit to roadside Breathalyzer units, often referred to as preliminary breath test devices (PBTs), they may be subject to a minor traffic infraction as a penalty. Depending on the circumstance of your charge and what you've had to drink, it may be in your best interest to refuse to submit to this device even though results are generally not admissible in court to prove intoxication.

However, keep in mind some states revoke your license for one year if you refuse the breath test at the police station.

Police station breath testing machines

Breath testing machines used at police stations generally use infrared sensors or fuel cell sensors, but some machines are designed with both. Depending on the type of machine used to test your breath alcohol concentration (BAC), different conditions can cause malfunctions. One of the most common problems with BAC testing machines is a condition referred to as mouth alcohol contamination. This occurs when alcohol is somehow trapped in or regurgitated to the mouth during the breath test. Alcohol can be trapped in the mouth in dental obstructions or particles of food debris, resulting in straight alcohol (rather than a breath sample) being blown into the machine. Machines are generally outfitted with a "slope detector" indicating that the rise in alcohol into the machine was so fast that the sample is subject to this condition and the machine will generate an error message.

Bottom line: Don't drink and drive

All this said, the best thing an individual can do is to refrain from driving after drinking, and seek some form of convenient alternative transportation to get home, arranged in advance (generally cab or other livery service). If your plans include drinking, please take a moment to make the necessary arrangements to prevent what can be a very costly and even deadly mistake.

Happy – and safe – holidays

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