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DUI Frequently Asked Questions

If I am pulled over for a DUI, should I take a breath test, a blood test, or refuse the test altogether?
Answer: You should agree to take a breath test – and choose the breath over the blood test. You should not refuse the test, as your refusal can be used against you in court. This is different from your right to remain silent. If you remain silent, and don’t answer any questions, the District Attorney will not be allowed to tell this to a jury if your case goes to trial. However, if you refuse to take a blood or breath test, the DA can tell the jury that you refused, and try to convince them that you refused because you had “consciousness of guilt.”

You should agree to take a BAC test unless you are very certain that you have a very high blood alcohol content, and that a BAC test will only incriminate you.

What are the consequences if I refuse to take a blood or breath test?
Answer: On first offenses, your license suspension will be for one year, rather than three months. On second offenses, the suspension will be for two years instead of one year. Further, the prosecutor in your criminal case can say to the jury that you knew that you were guilty, and that’s why you refused the test.

Should I agree to do the roadside tests?
Answer: No. The officer has already decided whether you are going to be arrested before you are even asked to do these tests. Doing them only leads to additional evidence against you, since the officer is certain to find fault with your performance. You are not required to do these tests, and should politely decline, or even better, don’t speak at all.

Do I have a right to speak with an attorney before I decide whether to take a blood or breath test?
Answer: No. In fact, if you persist in asking for a lawyer before making the decision, this will be considered a “refusal” of the test.

If the officer asks me whether I have had anything to drink, what should I say?
Answer: Nothing. Remain silent. You may feel intimidated by the situation, and feel as though you have no alternative but to answer the question. This is not correct. Your right to remain silent under the Fifth Amendment to the Constitution is very powerful, and that right prohibits the prosecutor from ever mentioning to a jury that you remained silent.

The police officer never read me my rights. Will this help my defense case?
Answer: Only if you made incriminating statements after you were arrested. Your statements before you are arrested are not effected by your Miranda rights. If you made statements after your arrest, and were not advised of your rights first, your attorney may be able to keep your statements out of evidence.

Why am I charged with two counts of DUI – shouldn’t it be only one count?
Answer: You can only be convicted of one DUI. The reason you see it charged twice is because there are two different laws that make it a crime. This provides the prosecutor in your case with two different legal theories with which to prove you guilty: The first, that your BAC was over 0.08. The second, that your ability to drive was “substantially impaired.” Even if the District Attorney proves both, you only get one conviction.

What things will make my sentence worse?
Answer: Common facts or evidence that will make the judge consider your DUI case to be “aggravated,” or worse than usual, include:

  • Reckless driving behavior and speeding
  • A blood alcohol content over 0.20
  • Refusal to take a breath test (only some judges)
  • There was property damage
  • Someone was injured
  • There was a child in the vehicle

If the judge believes that your case is aggravated relative to others, you may receive a harsher than average sentence.

Do I need an attorney? Should I just represent myself?
Answer: DUI cases are complex and involve evidentiary, procedural, and constitutional issues that only experienced DUI attorneys are competent to handle. It is not a good idea to represent yourself, given the penalties and financial costs you will incur with a conviction. An experienced lawyer can thoroughly evaluate the case against you, force the prosecutor to produce additional evidence, suppress evidence, have blood samples retested, challenge your driver’s license revocation, and much more. Even in cases where there is no effective challenge to the prosecutor’s evidence, an attorney will work to minimize the consequences that you face. Effective negotiations with the District Attorney – and experienced representation before the judge – are both priceless when you are facing potentially serious punishment in your case.