What should I do if I get pulled over for a DUI/DWI?

If you’re not sure whether you are safe to drive, you should call a friend or an Uber/Lyft to get a ride home. Life is too precious. But if you find yourself in a situation where you’ve been stopped on suspicion of driving under the influence, here’s what you should do.

How do I know if the officer suspects I’m driving impaired?

Assume that you’re being investigated for driving under the influence of alcohol or drugs if the police officer asks any of the following:

• If you’ve had anything to drink

• If you’ve taken any medication or drugs

• Why you were “going all over the road” or driving under the speed limit

• How an accident happened

What should I do then?

1. Be respectful but stop talking.

Remember, you’re probably on video. (Almost all officers have a dashboard or body camera.) Anything you say or do (and most of what the officer says or does) will be recorded. Be polite. It’s always wise to address the officer as “Officer,” “Sir,” or “Ma’am.”

Get out of your vehicle if the officer tells you to. When asked, show the officer your license and registration. Beyond that, you’re not legally required to say or do much else. You have a constitutional right to remain silent. Now’s the time to exercise that.

Nobody talks themself out of a DUI charge. But many people talk themselves into a DUI conviction! Here’s the magic phrase: “Officer, I don’t have anything to say without an attorney.” If that feels too rude or abrupt, you can start with, “I know you’re just doing your job, but... <insert magic phrase>.”

2. Decline the field sobriety tests and the preliminary breath test.

Politely decline when the officer asks/tells you to do field sobriety tests (FSTs). A simple “No, thank you” is enough. Even when sober, it is tough to ace the FSTs. You’re stressed out. There is a police officer staring at you. It’s probably dark, and there are lots of flashing lights from the police car. You might be tired or cold. If you chose to do the FSTs, at best, the officer would probably note that they had to repeat the instructions or that you didn’t follow the instructions completely.

Before or after the FSTs, the officer might offer you a preliminary breath test (PBT). A PBT is a small device you blow into for a “quick and dirty” reading of your blood alcohol content (BAC). Again, say, “No, thank you.” By law, if the evidence shows you have any alcohol in your breath, the officer has probable cause to arrest you.

You have the right to refuse the PBT. The prosecutor can’t use that refusal against you at trial. The officer may arrest you anyway. But, if you keep the talking to a minimum and decline the FSTs and the PBT, you will significantly limit the evidence the prosecutor could use against you later.

3. Be aware of the consequences of giving or refusing a breath test at the police station/jail.

In Virginia, you are required to give a breath or blood sample after being arrested on suspicion of DUI/DWI. Whether you get convicted of DUI/DWI often turns on this test result. (Note that a breath test at the police station/jail is different than the PBT.)

The legal limit is 0.08. It is illegal to drive with a BAC of 0.08 or more. There’s also a presumption that you are impaired if your BAC is 0.08 or greater. But there’s also a presumption that you are NOT impaired if your BAC is 0.05 or less.

There’s no presumption either way if your BAC is 0.06 or 0.07. In these cases, how you drove, what you said to the police, and how you did on the FSTs will be the evidence. As noted above, you always have a choice to keep silent and decline the FSTs politely.

4. What happens if I refuse to give a breath sample at the police station/jail?

If you haven’t had a DUI/DWI before, refusing the breath test at the police station or jail is a civil offense, not a criminal one. You cannot be fined or sent to jail. Refusing the test means your license gets suspended for a year.

The judge has the discretion to give you a restricted license after 30 days. If you have a prior DUI (or refusal) conviction, you’ll lose your license for three years.

5. What happens if I get charged with DUI/DWI?

Typically, you’ll be booked and held at the local jail. The magistrate will set a bond. You probably won’t have to pay anything if you have a clean record. If you are given a secured bond, you can pay it all yourself (you’ll get the money back after trial), or you can pay a bail bondsman a 10% fee to pay your bond. Either way, you’ll be jailed until you blow 0.00 BAC on a PBT.

You’ll be given an arraignment date and told to appear in court. This is when you should call me. My number is 703-772-7948; save it in your phone now! You need an experienced former prosecutor in your corner. Traffic prosecutors prioritize DUI/DWI offenses. These cases are practically impossible to fight without an attorney.

The U.S. and Virginia Constitutions provide you with many procedural safeguards. I will comb through the evidence in defending your rights.

THE TAKEAWAY

If you’re stopped on suspicion of DUI/DWI, be polite but don’t answer questions. Decline field sobriety tests and the preliminary breath test. If you are arrested, carefully consider whether taking the breath test at the police station/jail will help exonerate or convict you.

When you or someone you know is facing a DUI/DWI, please call or text me at 703-772-7948. I will respectfully listen to your concerns, walk you through what is likely to happen, and explain your legal options.

- Attorney Kevin Gick

This blog is for general informational purposes only. DUI/DWI law in Virginia is very complex. Every case and every jurisdiction is different.