The question I have been asked more than any other in the 25 years I have been practicing as a DUI defense attorney in South Florida is, "Should I blow into the machine?" The better question to ask is "What can I do to minimize the risk of going to jail for DUI once I have been pulled over?" The second question takes into account that in Florida, and that includes Ft. Lauderdale in Broward County, all Miami-Dade County and anywhere in Palm Beach County, a law enforcement officer cannot ask you to submit to a breath test unless you have already been arrested.
There are three typical DUI scenarios: The one officer scenario, the two officer scenario and the accident scenario. And, sometimes there are combinations of each. However, we can take each at a time since these are the most common. Before we begin you should keep one thing in mind. The following "rules" apply only to those who are legally DUI under any objective criteria. Police officers do not usually arrest the obviously innocent, although I have seen lots of exceptions to that rule. In this post, however, we will speak only to those that are obviously guilty.
The accident scenario is the easiest. If you have been drinking and you are involved in an accident, unless you can disguise it really really well, you are going to jail; even if the accident is not your fault. So you might as well start preparing for that eventuality. That being said, you should follow the rules I am about to set out because they apply to you once you become the target of a DUI investigation.
The ONE OFFICER scenario gives the absolute best chance of not going to jail. Once you have been stopped, be polite and give short answers to questions. Do not give long explanations or excuses; you will only make things worse. This officer will likely ask whether you have had anything to drink. Remember one thing, if you are HAMMERED and are going to jail anyway, you are under NO OBLIGATION to answer any questions, except correct name and address. If, however, you have had something to drink but you are not that bad, go ahead and acknowledge to the officer that you have been drinking BUT DO NOT BE SPECIFIC! If he follows up by asking, "How much?," you can give a non-specific response like, "Not that much, really," or something along those lines. If it is apparent that you have had something to drink and you LIE and say you've had nothing, take it to the bank you are spending the night at the expense of the county.
The One Officer scenario is also the safest for doing field sobriety exercises. Once again, if you are hammered, you have nothing to gain by doing roadside or field sobriety exercises, so politely decline. You are going to jail anyway, so do not give South Florida DUI law enforcement any evidence they can use against you later in court. Once again, however, if you are doing a good job of disguising the level of your intoxication and you are feeling good, especially if you work out and exercise, you can go ahead and risk it. In most cases this is your best chance to go home and thank your lucky stars for that pilates class. Keep in mind if you miscalculate and you are more impaired than you first believed, that will be a problem. This advice is intended to give some guidance to those that are not completely drunk.
There is one more important exception. If the One Officer is a dedicated DUI investigator or member of a DUI task force then follow all the rules below for the Two or Multiple Officer scenario because you are going to jail, no matter how well you perform the field sobriety exercises.
The Two or Multiple Officer scenario is almost as easy as the Accident scenario. The rule is simple. BE POLITELY UNCOOPERATIVE. If Officer One has called Officer Two, chances are good that Officer Two is a DUI guru/specialist. Or, at least he or she thinks they are. No matter how nice Officer One has been to you and you to him or her, once Officer Two appears YOU ARE GOING TO JAIL. So you might as well get mentally prepared.
Once Officer Two appears, understand that the ball game is over at that point and you have little or no chance of escaping. Remember the following: YOUR JOB IS TO GIVE THEM AS LITTLE AS POSSIBLE WITHOUT APPEARING TO BE UNREASONABLE. This means politely decline to answer any questions that are not NAME, RANK & SERIAL NUMBER. Or, of course, name and address. You are NOT obligated to answer any questions other than what is necessary to identify who you are. DO NOT TELL POLICE YOU ARE GETTING A LAWYER (that only makes them angrier) UNLESS THEY OFFER. Meaning, unless they read you your Miranda Rights. If the cops tell you, "You have the right to remain silent," say, "Thanks, I think I will."
Keep in mind also, the police will attempt to coerce you to say and do things intended to secretly give them evidence to use against. Typically this takes the form of petty anger or resentment. And even, threats. Just remember, it's all common sense. You are in America; you cannot be compelled to be a witness against yourself.
Another way DUI investigators in Ft. Lauderdale, Miami-Dade, West Palm Beach and elsewhere in Florida, attempt to gain your cooperation is to appear friendly and helpful. After Officer Two arrives on scene ALL police who are present ARE NOT YOUR FRIEND and are NOT THERE TO HELP YOU, no matter how nice and polite they appear to be. They are secretly gathering evidence to use against you later. The key is to be POLITELY UNCOOPERATIVE.
You are not obligated to perform any tests. And I mean, ANY TESTS. You are not obligated to do field sobriety exercises. However, if Officer Two has a video camera and is recording you and tells you that if you don't do the FIELD SOBRIETY EXERCISES (NOT THE BREATH, URINE OR BLOOD TEST) your license will be suspended, he has just misadvised you on the law and you can go ahead and do them. The knowledgeable DUI Defense Lawyer in Fort Lauderdale, Miami-Dade and West Palm Beach will be able to get them thrown out. Otherwise, if the cop tells you that if you don't do the FIELD SOBRIETY EXERCISES he will base his decision to arrest you upon what he has seen so far, POLITELY DECLINE. This cop was going to arrest you anyway, even if you performed perfectly. In the long run you will have done yourself enormous good, trust me.
Your decision to decline will lead directly to the handcuffs. BE CALM, DO NOT OVERREACT. Just accept what has happened with dignity. Remember, you will be released. Just try to relax and remain focused despite the alcohol haze that is now rapidly evaporating.
If the cop has a video camera in his car he will ask you at this time whether you will submit to a BREATH TEST. If you have been taking drugs with your drinks, and I mean even your prescriptions, and the officer suspects it, he will also ask for a urine sample. Once again, POLITELY DECLINE. The officer will then tell you that if you persist in declining, your license will be suspended. This is a direct threat intended to scare you into cooperating. It is also a correct statement of the law. However, the officer does not tell you the whole story.
Remember that if your license is suspended for refusing, the South Florida DUI Lawyer practicing in Miami-Dade, Ft. Lauderdale in Broward County and West Palm Beach in Palm Beach County, will be knowledgeable in fighting or combating that suspension at your administrative hearing (See, Administrative DUI Suspension post) and will be able to get your license back or at minimum a temporary hardship permit that will allow you to drive legally during your suspension.
If Officer Two, states on video or gives you a document to sign that includes the offer of a BLOOD TEST, chances are if you agree to the breath test those results will be thrown out. Once again, the knowledgeable South Florida DUI attorney practicing in Miami-Dade, Ft. Lauderdale in Broward County and West Palm Beach in Palm Beach County, will recognize that following an ordinary DUI stop, meaning one where there is no accident or hospital visit, the offer of a BLOOD TEST, will invalidate the results of a breath or urine test.
Let me clear this up. The cop will say or show you a document that says you are being offered a breath, urine or blood test, even though he wants a breath test only. If under those circumstances you agree to the breath test, those results are invalid, because even though you agreed to take a breath test the cop also offered you a blood test. The fact that you agreed to a breath test does not validate the fact that he had requested you submit to an unauthorized blood test. Clear? I hope so, because under this scenario you get the best of both worlds. Your license is not suspended because you refused. Although it will be suspended because you blew above the limit, however, that suspension will be invalidated because of the unauthorized request for blood. And, later in court, your results will be thrown out also because of the unauthorized request for blood. DO NOT CLEAR this up with the cop. It is important that the cop be unaware that even though you gave a breath sample, he also unwittingly requested that you provide blood.
I keep mentioning about video. That is because in certain Florida jurisdictions DUI investigators use video cameras to record their DUI investigations. In Broward County, most all DUI task force members, whether they are Broward Sheriff's Office or municipalities, use cameras. The same is true in Monroe, Palm Beach County and nearly every other jurisdiction across Florida. South Florida Highway Patrol do not use video. In the One Officer scenario, unless the one officer is a DUI specialist, there is no recording out on the street. However, you will be recorded back at the station. In Miami-Dade County no DUI investigations are ever recorded no matter who the officer is.
It is important to take into account the presence of the camera. And to remember another very simple rule: Unless recorded, the officer will lie about anything he or she said or told you that can later be used against him. Take it to the bank. Unless you are being recorded, do not count on the officer that arrested you to repeat anything he or she may have told you that night that would be beneficial to your case. That is why in most instances, you should just be politely uncooperative.
So remember, these simple rules:
#1 Drinking and Accident, you're going to jail, so be politely UNcooperative with the DUI investigator. Although you can, and in most cases MUST, answer questions about the accident so long as you are not given your Miranda Rights. If ever a cop tells you, "You have the right to remain silent," for goodness sake, REMAIN SILENT!
#2 The One Officer scenario gives you the best chance of going home. So, if you are not obviously drunk, you can cooperate up until the time he puts the cuffs on. After that be POLITELY UNCOOPERATIVE.
#3 The Two or Multiple Officer scenario, you're going to jail. Be POLITELY UNCOOPERATIVE.
For more detailed information contact Fort Lauderdale DUI Defense Attorney Carlos A. Canet 24 hours a day, 7 days a week.
