Tuesday, October 30, 2012

DUI Tips from a Louisville DUI Lawyer: You Know...Just in Case

People ask me regularly what they should do if they get pulled over by the police.  The answer to that question, like the answer to most legal questions is, “It depends.”  Let’s start with a few basic facts and assumptions, then we’ll move to the “what to do” portion of the post.

Basic Principle #1: It is not illegal to drink and drive in Kentucky unless you are “under the influence.”  Everyone has heard that it is illegal to drink and drive.  But that’s not really true.  “Don’t Drink and Drive” is a billboard slogan.  It is not the law.  The truth is that it is perfectly legal to have a beer or two with dinner, or a glass of wine out with your friends, and drive home, as long as you are not “under the influence” of alcohol.

Basic Principle #2: Notwithstanding Basic Principle #1, it is a bad idea to drink and drive in Kentucky.  Seriously, it can save you a lot of headache and money if you just take a cab.  Or, if you are lucky enough to live in Louisville inside the Watterson, take City Scoot.  You may not wake up and be glad that you did.  But if you wake up in jail, you’ll be sorry that you didn’t.

Basic Principle #3: Police are not your friends, and they are not trying to help you.  Police officers have a job to do and they have to justify their job.  Their job is to arrest people.  If you give them any reason to arrest you, even if it is a close call, they will arrest you.

Basic Principle #4: Some police officers know the law and follow it.  Some police officers do not know the law.  Some police officers know the law and choose not to follow the law.

Now let’s meander into the realm of “What to do.”  For the purposes of this conversation, assume that you’ve had a few drinks at dinner, and that you are being pulled over on the drive home.  Assume that you’re feeling some effects of the alcohol, but you wouldn’t consider yourself to be “drunk.”  You aren’t sure whether you would be considered “under the influence” of alcohol.  You’re driving just fine, but you got caught speeding a few miles per hour over the limit.

That brings me to my first point, “How NOT to get pulled over.”  In the above scenario, the easiest way to avoid going to jail is to avoid minor traffic violations.  Before you put the car in gear, make sure you have your seatbelt on, and both of your headlights are illuminated.  Make sure your break lights are functioning.  Make sure you have insurance and up-to-date registration, and that you have proof of both in the car or in your wallet.  Don’t speed.  Make sure to use your blinkers, and obey all traffic signals.  If it says “STOP,” then stop.  Don’t just slow down.

How to Interact with Police:

Keep your proof of insurance behind your license in your wallet.  That way you can pull it out immediately and give it to the officer when you get stopped.  This will avoid a situation wherein the officer writes “Subject had difficulty producing proof of insurance/Subject fumbled around with his documentation” on the citation.

Don’t speak to the police officer.  You have the right to remain silent.  Exercise that right.  This will avoid a situation where the officer writes “Subject had the smell of alcohol on or about his breath/Subject had slurred speech” on the citation.  Instead of speaking, you will remain respectfully silent, hand the officer your documentation and my business card.  On the back, it has a little love letter to the police, informing them that you will not be performing field sobriety tests and that you do not waive your rights.  Which reminds me…

Don’t take Field Sobriety Tests.  Seriously – just stand there and remain respectfully silent.  There is no negative ramification for refusing to take FSTs.  This will avoid a situation where the officer writes “Subject failed FSTs/Subject showed presence of Nystagmus prior to and at 45 degrees, and at maximum deviation/lack of smooth pursuit/Subject could not maintain balance, etc.” on the citation.

Don’t take a Portable Breath Tester.  The PBT is the breathalyzer that police officers carry with them.  There is no negative ramification for refusing to take a PBT.  If you stand silent and refuse to blow, this will avoid a situation where the officer writes “PBT showed presence of alcohol/PBT .08” on the citation.

Doing all of the preceding is the best way to avoid getting arrested.  If you don’t give the police officer enough evidence to constitute probable cause for your arrest, you cannot be arrested.*  If you are actually arrested without probable cause, you need to talk to a good Louisville DUI lawyer immediately.  I can make a motion to dismiss your case for a violation of Constitutional rights (specifically, 4th Amendment). 

I’ve droned on enough about how to interact with police in order to avoid arrest.  At least for today.  If you have any questions about whether you should take the Intoxilyzer Breath Test (not a PBT – this would be the breath test AFTER arrest), the enhanceability of DUI, aggravating circumstances, or other motions to dismiss or suppress in a DUI case, please do not hesitate to call me.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

If you are charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 for a free consultation with an experienced Louisville DUI lawyer.  Greg Simms was named in Louisville Magazine's "Top Lawyers" of 2012 for DUI law.  Your case is serious.  Don't trust your DUI case to someone who only practices DUI law "every once in a while."  Call Simms & Reed, PLLC, today.

*Subject to Basic Principle #4.

Questions answered in this post:  What does "under the influence" mean; is it illegal to drink and drive in Kentucky; what am I supposed to do if I get pulled over by the police and I've been drinking; should I take field sobriety tests; should I take a portable breath test; how can I find a good Elizabethtown DUI lawyer; how can I find a good Louisville DUI lawyer; Louisville top DUI lawyers 2012; how do I avoid a DUI in Kentucky?

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