Your Rights When Police Suspect You’re Driving Drunk

Monday, March 05, 2012

Leonardo Angiulo, GoLocalWorcester Legal Expert

Leonardo Angiulo, GoLocalWorcester Legal Expert

By the end of a work week, we’re all wicked tired, but that doesn’t necessarily mean that you stay home. You might go out to the bar, meet up with friends and have a couple beers. Next time you’re there, take a look at your friends down the bar or around the table. Any one of you could be pulled over on the ride home. At the end of the night, you say goodbye and hop in the car. Maybe you reach down and send off a quick text on the drive home. Bang. You sideswipe two cars parked on Green Street.

As a responsible driver, you do the right thing. You stop your car, you get out, and you make sure the people whose cars you accidentally hit have your insurance information. And then the police show up. Now, let’s be honest. It doesn’t look good for you. It’s late on a Friday, and someone had spilled their beer on you back at the bar. The officer says “Sir/Ma’am have you been drinking tonight?” You answer honestly and say, “Yeah, two beers just down the street at (fill in the blank here).”

The crime of Operating Under the Influence isn’t about whether you got into an accident on a Friday, or whether you were illegally texting. It isn’t about whether you had two bud lights or even two good beers on Green Street. The question is whether the alcohol you consumed adversely affected your ability to operate your motor vehicle safely or whether your blood alcohol level was at 0.08% or greater. Just because you find yourself in a tough position on this night doesn’t mean you’re already convicted. Once you get bailed out, get yourself to an Attorney and talk over your options.

From the Officer’s position, he’s in a bind. You’ve admitted to being in an accident, you stink like beer and you admit to drinking. He’s got a job to do and that includes doing an investigation and then placing you under arrest. The officer’s three major tools for the investigation of an OUI are his 5 senses, your results on what are called “Standardized Field Sobriety Tests,” and the Breath Test back at the station. I can’t tell you what you should or shouldn’t do when you’re being investigated for an OUI. What I can do, however, is talk to you about what choices you have.

As I mentioned earlier, one of the ways the Commonwealth can get a conviction for OUI is by proving your blood alcohol level was at 0.08% or greater. The way they prove that, more often than not, is by submitting a breath test result at trial. They get this result by asking you to submit to a breath test. The key word being “asking”. You can refuse to provide a breath test sample. Without that sample the Commonwealth will not have evidence that will surely lead to conviction if your result is at 0.08% or above. Of course, there are consequences for refusing a breath test. This includes a mandatory sixth month loss of license for the first time your refuse. If, however, you are found not guilty before that six months is up your attorney can file a motion to have your license returned to you that a judge may or may not allow.

At the roadside, the Officer will also ask you to perform what are called standardized field sobriety tests. This is the classic nine step walk and turn, one legged stand and the alphabet test. Many drivers are unaware that they can refuse them as well. Unlike the breath test, there is no associated license loss. I want to remind readers, however, that just because you are exercising your options does not mean you have to be confrontational. Be clear about not taking the tests, be insistent, but be polite. Being a gentleman, or a gentlewoman, goes a long way.

As I mentioned earlier, no matter what happens on that hypothetical Friday night, the results that matter come six months to a year later if you choose to fight the case. At trial, a judge or a jury will be listening to a Police Officer testify. If you provided a breath test sample and took the field sobriety tests, the judge and jury will hear evidence about your results. If you didn’t, they won’t. There won’t even be evidence that you refused the breath test or field sobriety testing. The evidence against you at trial will only be what this officer saw, heard and smelled. The big issue is that people have choices but they aren’t automatic and they aren’t magical. Every one of us has to know what our choices are. Of course, the immediate issue is that it’s probably better to be careful enough to avoid these kinds of situations in the first place.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected] or through the firm's website at www.gskandglaw.com