In DuPage DUI cases, the question of whether to submit to chemical testing is not the first issue. Indeed, how you handle yourself during the initial traffic stop could either create more defense options in court or reduce them. For purposes of this discussion let's assume that for whatever reason, you have consumed an amount of alcohol that would probably put you over the legal blood alcohol limit of .08 and are driving yourself home and you get pulled over.
Here are the Top Three Things NOT to DO:
Number 3: Do Not Admit to consuming alcohol
The best way to do this is to take the 5th amendment. Saying "On advice from counsel, I rely on the protections afforded me under the 5th Amendment of the U.S. Constitution and therefore respectfully decline to answer." If you have your wits about you, you can use this answer for virtually every question the police ask you in a potential DUI traffic stop. So when the police ask, "where are you coming from," or "how much have you had to drink," taking the 5th can be a smart option.
This won't get you out of being arrested. If the police officer asks you this question, even if you don't think you're "that drunk" there is a high likelihood that if the cop asks you this question he has already concluded that you have been drinking. Now he wants you to admit it. By using "taking the 5th" you give yourself and your lawyer something to work with in court.
If you're going to use this strategy then you should use it all the way. Except for routine booking questions like "what is your name" and "what is your address" taking the 5th amendment is a response that you can give to any question by the police at any time.
Number 2: Don't Do Field Sobriety Tests
There are three standardized field sobriety tests. The horizontal gaze nystagmus test (HGN) is an eye test. If the officer asks to look at your eyes and follow his finger or something else, he's trying to get you to do this test. Put your hand briefly over your eyes and say "a lawyer told me not to do any tests.".
The same is true of the other two field sobriety tests: the walk and turn test and the one leg stand test. If the officer asks you if you know the alphabet, say "of course but a lawyer advised me not to do a test of reciting the alphabet."
Number 1: Never take a breath test on the street
There are two types of breath testing machines. One is a portable breath tester the other is larger at the police station. Refusing a portable breath test on the street is different from refusing the one at the station. If asked to blow in a PBT on the street. I would almost always advise you to just say "NO!"
Refusal of the PBT will not result in any driver's license sanction. Although the Officer may tell you he'll let you go if you blow under the legal limit, don't believe him. If he's asking you to take this test, in my 18 years experience as a DUI defense lawyer, I can say categorically that the cop has already made the decision to arrest you. He is asking you to take the test to build his case. Don't let him do it. Always refuse the PBT.
Brent Christensen is a DUI Defense attorney with a practice in Wheaton, Illinois