The Holidays are upon us and we will all attend more parties than normal. You can certainly drink and enjoy yourself “if you want to”, but I strongly encourage you NOT TO DRIVE afterwards. The truth of the matter is that some of our CV Weekly readers are going to be stopped and some even arrested for a Drunk Driving this holiday season. So do yourself a favor and DON’T DRINK AND DRIVE. You do not need the extra costs that go along with a DUI like hiring a lawyer and legal experts in addition to paying the court costs and fees. Instead take a taxi or have a designated driver.
However if you do get arrested this is what you may encounter:
Let’s call the party Who Drinks If She Wants To…… Leslie and her counterpart-Officer Gore.
Leslie will see flashing lights in her rear view mirror and hear the siren behind her. Officer Gore will approach her and ask for her License, Registration and often her Automobile Insurance. If Leslie fails to have any of these with her she is guilty of a separate Misdemeanor violation of the law for which she can also be cited. If her papers are not readily available the officer will comment in his report on how Leslie spent a lot of time “fumbling in her purse/wallet” to find her license and registration.
This could suggest to Officer Gore that Leslie may be under the influence. That is why it is a good idea to buy a little plastic holder that is sold at all car washes, in which you insert your registration on one side and the proof of insurance card on the other. In addition you should always keep your driver’s license in a place that is easy to reach.
We all get Black and White fever when we see a police officer. It has nothing to do with drinking and driving. However if you have been drinking you are likely to have a higher “fever”. Remember your inability to readily produce your CDL; Insurance and Registration are arguably symptoms of someone who is under the influence.
Officer Gore will ask Leslie to get out of the vehicle and start asking her questions. Though the Breath Test and Field Sobriety Test (FST) at the scene are OPTIONAL, Officer Gore may not advise Leslie of this and she can only hurt herself by taking these tests. It is arguable that taking a Blood Test at the police station or hospital is preferable. It is possible that with the passage of time Leslie’s reading will go down by the time blood is drawn………..unless she just chugged a drink and the alcohol has not yet gotten into her blood system. Leslie will not be aware that it takes about an hour for the alcohol to go into your blood stream and an hour to come out…………but now YOU DO!
Officer Gore will tell Leslie he smells alcohol on her breath and he will ask her where and how much she was drinking. However, The Dose Makes the Poison! In other words it’s the Amount of Alcohol, NOT the Number of Drinks that are Important.
I often get clients who swear they only had one drink but the legal system looks at the total amount of alcohol not the number of drinks. One drink is one 12 oz beer, 4 ounces of wine or 1 ounce of alcohol. Thus when someone uses a red Costco 16 oz cup and fills the cup with Vodka and tops it off with OJ they are consuming 10-12 ounces of alcohol or 10-12 drinks. If Leslie weighs 110 lbs then before she finishes her 2nd drink she will probably be Under the Influence.
The law looks at whether Leslie is Driving Under the Influence and Drunk Driving is a misnomer as Leslie does NOT have to be drunk. IF she has a .08 reading then she is arguably under the influence and the burden falls back upon Leslie to prove she was not under the influence.
We are not even taking into consideration, at this point, whether Leslie was also taking a prescriptive drug that had a warning not to operative heavy equipment. Many pills, when mixed with alcohol, create a Potentiation and it thus takes less alcohol to make one under the influence. If this is the case then Leslie could be arrested for Driving under the Combined Influence of Alcohol and a Drug without having a .08 reading.
The best advice I could give to Leslie is “If you are arrested for a possible DUI, DO NOT TALK TO ANYONE OTHER THAN YOUR LAWYER.” The sad fact is that law enforcement officers and the DA are NOT your friends no matter how much they tell you they are. They are just doing their job and trying to make a case based on the facts of your arrest.
So, if you are arrested, do yourself (and your lawyer) a big favor and SHUT UP and CALL A LAWYER!
Next week we will discuss How to handle the DMV so that your license is not suspended for 4-5 months after a DUI arrest. Remember you only have 10 days to request a DMV hearing.

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