LABOR DAY HOLIDAY AND DUI

Dear clients & friends:

This is an open message to everyone out having a family party, enjoying the water or a football game. Law enforcement is going to be on the road in full force this weekend. I want to remind you of a few things. So often people come into our office seeking help for a DUI. One of the first things they say is “I wasn’t drunk.” And most of the time that is true. But the law punishes to a much less extent then driving drunk. Mississippi Law makes it illegal to drive with a blood alcohol content greater than .08% as measured by the Intoxilizer or after having consumed an amount of alcohol that impairs the ability to safely drive an automobile. The latter of these conditions is called common law DUI.

If you get stopped and questioned about driving under the influence, you are not required to answer any questions about your drinking. You have the right to remain silent. Ask for your lawyer. The police officer is going to deny your request and continue forward with his investigation. The police officer may also ask you to blow in a Portable Breath Test on the road (PBT) or take Field Sobriety Test (FST). You are not required to take any of these tests. You may politely decline and request your attorney. After 29 years there are a few things I have learned that I can pass on to you. Many police officers plan on arresting you if they smell any alcohol on your breath. I have had many, many cases where the person complied the the officer, took all the Filed Sobriety Tests, then took the Intoxilizer at the police station and measured below .08%, yet the person was still arrested and charged with common law DUI. Police officers do not have to tell you the truth. The United States Supreme Court in a case years ago approved police officers lying to someone who is under investigation. In many cases the officer will tell you if you take the Intoxilizer and pass they will let you go. This may or may not be true. You will be “taking a chance” if you believe the officer. The reasons officers want you to take the Intoxilizer at the station is because it is easier for them to prove a DUI case if you take the Intoxilizer and blow a test score of .08% or greater. When you don’t take the Station Intoxilizer they officer has a greater burden proving to the court that you were driving impaired.

If you decide not to take any Field Sobriety Test the officer will not have his subjective opinions against you as it concerns the test. In most every case we take that involve Field Sobriety Tests the officer claims the person did poorly, and when there is no video of the tests, cross examining the police officer becomes very important. When you voluntarily take the tests, you give the police officer more subjective opinions to use against you. In most cases as I have explained, if you are drinking or the officer smells alcohol, you can just about count on going to the Police Station and being asked to take the Intoxilizer. Here your choice is going to become difficult. Mississippi Law provides for a 90 day administrative penalty suspension of your driver’s license if you refuse to take the Intoxilizer. However the administrative penalty cannot be used by the insurance industry to adjust your insurance rates higher because of the refusal.

The Intoxilizer test is nothing but a machine. It does not measure your “real” blood-breath level. It measures the “average person” and determines a standard measurement. So when you take the Intoxilizer test at the police station, you are assumed to be an average person and the machine may actually register your alcohol higher than it actually is at the time of the test. And sometimes when you get stopped it could be hours before you get to the police station and are offered the Intoxilizer test. So at the time you were on the road going home, which may be only 10 minutes away, you were not impaired or your blood-breath ratio was under .08%, but hours later at the station the alcohol has had more time to get into your blood stream and you would then fail the tests. We have had many people arrested on their streets and in front of their homes. They made it home safely and were normal in every sense of the word, yet they were still taken to jail. You will have to choose whether or not to take the Intoxilizer at the station. The police officers are going to do or say anything that comes to their mind to get you to take the test. It makes their job and the chances of a conviction easier. If you don’t want to fight your DUI, then take your chance and take the Intoxilizer. Chances are if you register under .08% you will still be arrested.

If you are at the station and offered the Intoxilizer and refuse, be aware that many police stations have video cameras. You should be conscious of this and behave properly. Many DUI cases have been won because the video tape that the judge or jury viewed portrayed a person acting normal and not intoxicated, while the officer testifies to a completely different version. The video tape can be your best evidence if you act responsibly and politely at all times. You should also remember that any conversation you have with the officer who arrested you or any others in the station can be used against you. You should answer the booking information but you are not required to talk about where you have been, who you were with, or what you had to drink. If you must engage in conversation with the officers, do it on a topic that is not harmful to you, being always mindful that you may be under video surveillance.

DUI charges are expensive and difficult. The lawyer needs to be experienced with numerous DUI trials both to a judge and jury. We all need our driver’s license and being without one can cause severe hardship. There are plenty of officers who want to be know across the state has having made the most DUI arrests. They arrest anyone and everyone when they smell alcohol. When you know this it helps you understand how careful you must be when drinking and driving and how careful you must act when stopped. Remember, you do not have to take any road side tests. If you want to fight the DUI in court, it is going to be more difficult if you take the Intoxilizer at the station. There is a penalty if you do not take the Intoxilizer, but your defense is stronger without the Intoxilizer test results. I always tell people I have a sure defense to a DUI: Don’t drink and drive. If you do and get stopped, follow my advice and you will make a more informed choice.

The attorneys at Coxwell & Associates are experienced DUI attorneys. We have represented a State Judge in his second DUI which ended in a not guilty verdict. Another time we defended a high profile professional arrested after a collision. That case resulted in a not guilty verdict. Many other ordinary people have benefited from our experienced, practical advice. Our attorneys keep informed of the changes in law by attending local and national DUI training sessions. One of the Coxwell & Associates lawyers is travelling out of state in October 2009 to attend a 3day intensive DUI seminar.

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.

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