This holiday season, I hope you’re not sitting around planning out how to drink as much as possible while cruising the highways. Trust me, there are much safer and cheaper ways to spend New Years. That said, it seems as good a time as any to give some general tips on what to do if you do happen to become the subject of a DUI investigation. As with any encounter with law enforcement, everything you say will be used against you so keep your comments to a minimum. Here are some other semi-random nuggets you’d probably prefer to hear before you pick up a charge rather than after it’s too late:
- Teetotalers make great designated drivers.
The law in Illinois allows drivers to consume some amount of alcohol and still drive, though the amount will vary by person and circumstance. Regardless of what the law allows, letting someone drive who can voluntarily blow a 0.0000% BAC can save you a significant amount of time on the roadside. We’re talking the difference between a half-hour+ investigation and a five-minute stop. When available (and properly licensed), use the DD. - Committing a DUI without a license, or without insurance, is a felony.
Driving without a valid license is most often at least a misdemeanor on its own, but it can also make a DUI more serious. A few limited types of license suspension (for DUI or vehicular homicide) will elevate a DUI to a felony, as will not having a license or liability insurance at all. If your vehicle is involved in a felony, it can be seized permanently under Civil Asset Forfeiture. Yes, that actually happens for DUIs. Before you let someone else drive your vehicle home, maybe check to be sure they have a valid license on them. - Any alcohol container with a broken seal needs to be in the trunk.
If alcohol is in the “passenger compartment” of the vehicle, it must be in its original container with the seal unbroken. Even if it is, however, police will use the presence of alcohol to prolong a traffic stop into a DUI investigation. Just put it in the trunk (sealed up) and avoid the hassle. - Cannabis can only be transported in a reasonably odor-proof, child-proof, sealed or resealable container which is inaccessible during travel.
In other words, keep it sealed and keep it in the trunk. Many officers are trained to say they smell cannabis regardless of whether it’s actually true or not; don’t give them an excuse. Keep in mind, however, that the smell of burnt cannabis does not give the officers probable cause for a search according to the Illinois Supreme Court. - You can commit DUI in seven different ways, only two or three of which involve alcohol.
Driving Under the Influence includes a lot more than drinking. Prescription medication, street drugs, over-the-counter cold medicine, and even anxiety meds can all form the basis of a DUI charge. In addition, you can be convicted of “DUI, Combination” if you’re under the influence of multiple substances (whether pills and wine or airplane glue and air duster) that combine to create a greater intoxicating effect. The point is, please don’t say “I’m not drunk, it’s just my medication” during the DUI stop. It will not help, it’s an admission. - Sleeping it off in your car is still a DUI, even if you’re off the road.
Because you can commit a DUI by either “driving” or being in “actual physical control” of a vehicle, the old “sleep it off and drive home in the morning” bit will still get you arrested for DUI. You don’t have to be on the roadway to commit the crime, either: you can get a DUI in your own garage if the circumstances are right. If you have absolutely no other options, you can avoid a charge by locking yourself in the car and tossing the keys in a general direction away from any drains or culverts without watching where they land. Because this prevents you from starting the car and moving it at will (until you sober up and do some searching), you’re technically not in actual physical control of the vehicle. However, you may place yourself in other types of danger so this should remain a last resort. - Field Sobriety tests are not “Pass/Fail,” and you should list every disability you can think of before you start.
Officers conducting field sobriety testing are looking for “clues of impairment,” according to their NHTSA training. They generally perform one preliminary test for alcohol consumption (follow this stimulus with your eyes only) and two “impairment” tests (the walk-and-turn and the one-leg stand). The HGN test evaluates the eyes for rough, jerky movements indicating that the person may have consumed alcohol, though officers are often improperly trained to believe that it indicates alcohol impairment. The other two tests are known as “divided-attention” tests, because they test your ability to process, remember, and follow a complex series of instructions in addition to testing balance and coordination. The officer is required to ask, before conducting any of these tests, if you have any disabilities which could interfere with your performance on the test. Tell them everything you can think of: talk about the time you fell off your bike when you were three and it hurt your tailbone; tell them about the bone spurs that keep you from walking normally, the way you slept wrong last night and can’t stand up straight without hurting, or your especially bad cramps today. I’m only slightly exaggerating, here. That officer is going to be applying an incredibly rigorous (and frankly unrealistic) standard to the tests; by listing any and every disability which could cause you to misstep, you can largely invalidate those tests as a basis for arrest. - You have the right to refuse a Portable Breath Test, or a blood draw, without additional penalty.
If an officer asks you to blow into a device at the roadside (especially if they haven’t observed the statutory 20-minute observation period), you can say “No,” without consequences. This device is only for helping the officer decide whether they have probable cause to arrest you, and you can’t be forced to submit to such a test before probable cause is established. However, they will try to pressure you into “consenting” to such a test so be clear that you do not wish to consent. If the officer does generate probable cause for a DUI arrest, they are allowed to collect a sample of your blood, breath, or urine. You don’t have to consent, but your refusal will often be used like an admission unless you have a good explanation other than “I knew I’d be over the limit.” Refusal may cause your license to be suspended and will force the officer to get a warrant. Once upon a time, they could also file felony charges for Obstruction when someone refused to comply with a warrant for the seizure of blood or urine. However, the Illinois Supreme Court has ruled that someone does not “conceal” their blood by leaving it in their veins: as long as you do not physically resist an attempt to collect your blood, it can’t be obstruction of justice. Thankfully, most hospitals’ insurance riders prevent them from forcibly taking blood from someone who denies consent, so it shouldn’t come to that.
Hopefully, these tips will help you avoid any unpleasant detours this holiday season. If not, there’s a reason I do free consultations!
Happy New Year