Posted by Steven Fabian, Sonoma County Criminal Defense Lawyer
Written by: Julia Nicole Mcilroy, Criminal Defense Attorney
I have been telling my clients this for years, but by the time someone is my client, it is usually too late. So for the rest of you, take this advice to heart: if a police officer is talking to you, then they are looking for evidence of a crime. The more you say or do, the more evidence they will have to use against you later.
Do not believe that an officer is trying to help you out. They don’t get paid to help you. They get paid to take people they perceive to be criminals off the street. They will be nice to you, they can and will lie to you, they will make you promises they can’t keep, and they may threaten you. No matter what they say or do, remember, they are looking for evidence to charge you with a crime. Don’t give it to them! Don’t think that by being helpful they’ll let you get back in your car and drive away. It doesn’t happen.
I’m not saying that you should be rude or abusive. Be polite (yes sir, no sir) but say nothing!
Now, on to the field sobriety tests. Field sobriety tests (FSTs) are standardized tests (really, pop quizzes, because it’s not like you’ve been studying to take them) used by the officers to obtain information about your level of impairment. Some people (well, officers actually) swear that your performance on the FSTs is directly related to your level of intoxication. I haven’t seen any scientific evidence that actually proves this.The officer will tell you, that if you “pass” the tests, they’ll let you drive away. This is exceedingly rare. At least 95% of my clients tell me that they “passed” the FSTs, but they were not allowed to drive away. And, even if you think you can pass the FSTs, I will promise you the police report NEVER says the person passed. I have had clients whose blood work has come back with NO alcohol and NO drugs in their system, but, guess what? They failed the FSTs.Why is this? It’s because whether you “passed” or “failed” the test is completely subjective, meaning it’s up to the officer. And what is the officer looking for? Evidence of a crime. So he or she will always say you failed the test. Also, those “tests” are not exactly easy. Even a sober person who was not standing on the edge of the road with the officer’s light shining in their eyes probably couldn’t complete those tests perfectly.
So don’t do the field sobriety tests. However, in California you MUST complete either a breath or blood test once you have been arrested.
If you say no, you don’t want to give a blood or breath test and then later change your mind and give it, the officer and the DMV can still say you “refused” a test and take your license for a year. Yes, a year. Even after giving your blood to them.
So again, I repeat, take a breath or blood test. I would personally take a blood test, because they are more accurate and your attorney can retest the blood if necessary. Once you take the breath test, your breath is gone and all we have is a reading from a machine.
So, in summary, if you are stopped for a DUI and the officer asks you to complete a series of FSTs, say “no thank you sir” – even if he threatens you or makes promises to you. But make sure you take a breath or blood test after you are arrested so you won’t lose your license for a minimum of one year.