I heard on the radio recently that Christmas had lost its meaning and it was now Santa, Toys, and Holiday Parties. I don’t believe this but there are certainly plenty of Holiday Parties and celebrations. As a matter of fact Coxwell & Associates is having its 6th Annual Open House, Christmas Party & Toy Dive. We collect toys and buy gifts for displaced and underprivileged children at the Miss. Children’s Home Services. And I suspect there will be a few alcoholic drinks served at our Open House.
So, with all the Holiday Parties how do you avoid a DUI? Well, my best advice is don’t drink anything and then drive. Nothing! In my opinion there are a number of small municipalities around Jackson who have police officers that will take you to jail if they smell any alcohol on your breath. I have had at least 10 cases over my career where the person went under .08% on the Intoxilizer yet the police officer still arrested the person. How can a police officer do that you ask? Well, first you need to read the next paragraph and it will explain DUI.
The DUI law is found in Miss. Code Annotated § 63-11-1 and continues through several sections of the law. Simply put, DUI is driving on the public roads in the State of Mississippi with 1) a blood alcohol content of .08% or greater as measured by the current Intoxilizer approved by the Department of Public Safety; 2) driving under the influence of an intoxicating beverage or any other substance which has impaired the person’s ability to safely operate an automobile. Notice that there is no definition in the law called DRIVING DRUNK. The standard for violating the law is much, much lower than driving drunk. Obviously if you are drunk you should absolutely not be driving. Every month someone calls our office for help and invariably they say they were not drunk. So what? You don’t have to be drunk to get a DUI.
One important thing to remember is driving with a blood alcohol content of .08% or greater is somewhat of an objective standard. There may be faults in the machine and other arguments one can make about the unfairness of the Intoxilizer and the .08% measurement, but that is the law and the tests results are objective. You can see them and hold them in your hand. But driving under the influence without test results is a much vaguer standard. You could say driving under the influence of an intoxicating beverage or other substance is in the eye of the beholder, or at least the eye of the police officer. And believe me from experience-the police officer more often than not looks at you with a distrustful and evil eye. That is why I say more often than not if the officer smells alcohol on you, you are going to jail, one way or the other. Doesn’t seem fair does it? Well, as a great, dead judge once remarked to a person, “You aren’t in a court of justice, you are in a court of law.” And in my opinion the face of the law is often very sanguine and needs to be softened by the aid of aggressive attorneys for the accused.
So, what does a person do during the Holiday Season? Well, as I said before: Don’t drink anything and drive. Next, after a drink call a cab. And after that maybe have no more than 2 regular drinks or beers. Now, don’t quote me as saying you won’t go over .08% if you have only 2 drinks. I am not saying that at all. I am saying you are probably safe from the Intoxilier with just two drinks, depending on your size and other factors. Look at this website for some possibly more accurate information. But you are not necessarily safe from those police who want to earn their gold planted pin for 100 DUI arrest in a 1 year period. There have been several officers who have made over 500 arrests in a single year. Do you think City revenues might also be behind some of these arrests?
Let me say this first before we get back to what you should do if you are stopped or arrested: A good DUI attorney is going to cost around $2500.00, plus expenses. A great DUI attorney is going to cost $5000.00 + and expenses. Contrary to what some of the so called DUI gurus say, there are DUI’s that can be won and some that cannot be won absent a miracle. Don’t be misled otherwise.
Interestingly, your odds of winning increase if there is not an Intoxilizer reading of .08% or greater. So those people who blow and have less than .08% and those who don’t blow, stand a better chance of being successful in court. However, if you refuse to blow then the State of Mississippi suspends your driver’s license for 90 days because you refused to blow. This is separate and apart from the DUI. If you get your licensed suspended for failing to blow and win your DUI, you still have the 90 day suspension. If you don’t blow and lose your DUI, you then have 180 day suspension. Of course a refusal to blow is not counted or held against you by the insurance companies the way a DUI is held against you on your driving record. That is why so many people refuse to blow. I advise people of their rights and let them make the choice of what to do if stopped. “To blow or not to blow, that is the question? Is it nobler to blow and go to jail, or suffer the ignominy of the officer?” Alright, I am being silly. Enough of that!
There will be roadblocks and strict enforcement this Holiday Season due to a Federal Grant. If you are going to drive and have a drink this Holiday Season be sure you have your driver’s license, registration and insurance handy and in one location. If you have to look for these documents the police invariably say you fumbled for them and that is one of their signs of impairment.
When you are stopped you don’t have to make any admission against your interest or that will incriminate you. If the officer asks why you are pulled over you might say, “No, I don’t know. Why?” The officer will also ask if you had anything to drink. This is a touchy subject. Many people are afraid to stand up for their rights. They think if they don’t answer it will make the police mad, or they will seem guilty. Well, if you are out driving after having any drinks you are probably already guilty in the mind of the officer. You might consider saying something like “Officer I know you are doing your job, and it can be hard at times, but I have done nothing wrong and do not wish to discuss my affairs or what I have been doing with you.” Yes, this takes backbone to say. And maybe you are afraid what the officer will say or do, but I am telling you that if you find yourself in this position the officer is gathering evidence against you and you are going to jail regardless. Maybe there are a few instances when I am wrong, but they are far and few.
The officer may also ask you to blow into a Portable Breath Test Device or to take Field Sobriety Tests (FST). You are not required by law to participate or take any of these tests. The officer has the right to ask you to get out of the car but he cannot require you to take any tests on the roadside. Be aware of how your act and speak to the officer. Many people get out of the car and then naturally lean back on their car to wait. Time and time again I have seen this interpreted by the officer as a sign of intoxication. The officer will write in his report that you were unsteady on his feet so you had to lean on your car. When you get out of your car stand up straight, speak clearly, and by all means be polite to the officer. But don’t confuse being polite with having to incriminate yourself. You do not have to incriminate yourself and answer questions or do any tests. The only test that the law says you must take or suffer a 90 day suspension is the Intoxilier test and I have already explained above that if you wish to fight your DUI, most people decide to refuse the Intoxilizer test. That is your personal choice.
Be aware that at every moment you are under observation by the officer who arrests you and other officers. BE CLEAR, SIMPLE AND SHORT IN YOUR SPEECH AND ANSWERS. When your mug shot is taken look straight at the camera. Many times the booking photo contradicts the officer’s testimony that your “eyes were dilated or blood shot.” Don’t engage in any “off the record” conversations with the officer or anyone else in the jail. THERE ARE NO OFF THE RECORD CONVERSATIONS. What you say will end up in a police report so be polite, use nice language, and exhibit proper behavior, but stick to your rights. If you act up or act an ass, I can guarantee you that you will stay in jail longer and your behavior will end up in the police report. And judges do not like people who are rude or use abusive language to the police any more than many judges do not like rude officers. (Sadly, some judges tolerate rude officers).
I think it is time for this blog article to come to an end. It has been very comprehensive and plainly and directly stated your rights. I hope during the Holiday Season each of you avoids driving drunk. I also hope you avoid driving with an alcohol content of .08% or greater, and avoids driving under the influence of intoxicating beverages or other substances as judged by the officer who stops you. If you have additional questions feel free to pose a question in the “comments” section or e mail us.
You might think this is strange since we advise and represent people who get charged with DUI, but we also represent people who are injured in automobiles by drunk drivers. Sadly, we have had several big cases for people seriously and permanently injured by drunk drivers. Please don’t be one of the drunk drivers or one of the injured. During the Holiday Season if you have any question about your sobriety, resolve all doubts for taking a cab. A $35.00 cab bill is better than a $5,000.00+ attorney’s fee.
Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.