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Tuesday, August 9th, 2011

To Blow or Not to Blow…

The one question that I am asked the most in social settings, as both a law student and then as a lawyer, is what to do if you are pulled over by the police and you have been drinking?  Do you submit to the breathalyzer or not?  This question’s answer, like most legal questions, is the maddening “It depends…..”

When you are stopped by the police and you have been drinking, always remember what your mother told about being nice.  I can not stress this enough, but be polite to the officer making the stop.  Police officers are human and even they may have trouble remaining composed and professional in the face of a belligerent and obnoxious suspect.  Additionally, the more polite and courteous you are to the police officer, the less of an impression you will make on him when it comes to writing up the arrest report and/or appearing as a witness at your trial.  The last thing you want to hear from a police officer is “Oh yeah, I remember this guy….”  The police officer can make your case more difficult for you if you make life difficult for the officer.

The next part of the equation of a DUI stop is the field sobriety test.  The simple solution to this step of the arrest is to politely refuse to perform the field sobriety tests on the advice of your attorney.  At this point, you are already suspected of being intoxicated and you are already under arrest, thus there is nothing you can do that will help your case by performing the field sobriety tests.  Any record or observations by the police officer of your performance will only hurt your defense to the DUI charge.  As to the portable breathalyzers, also refuse to submit to this test because refusal to take this test will not result in a driver’s license suspension.

Now for the critical point of the arrest, blowing or not blowing.  Refusal to submit to a breath test will automatically cause your driver’s license to be suspended for 12 months, while cooperation (and failure) still nets you a 6 month suspension.  In Illinois, do not expect to be able to call your attorney when you are pulled over for a DUI and, in fact, you are not entitled to have your attorney present when the police read the implied consent warning to you or when you are asked to submit to the breathalyzer testing.  Therefore, my advice to you is not to perform the breathalyzer test, but there are some exceptions to this general rule.  If you have truly and honestly only consumed a minimum amount of alcohol, then I would recommend that you take the breathalyzer test because this could clear up the situation very quickly for you.  On the other hand, do not submit if you have already had a prior DUI conviction.  So, only blow if you can safely do so and you are not legally intoxicated, otherwise, don’t do it.

Finally, I highly recommend that you politely refuse to answer any questions by the police pertaining to your alcohol intake, where you were drinking, or any other matter until your attorney is present.

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