A Virginia DUI story: Know your rights

By André Hakes

CHAPTER ONE: It's 11:00pm and you're on your way back from dinner. You are pulled over for a check point, speeding, or a taillight out. The officer walks up to your car shining the flashlight in the backseat on the way past, looking for drugs, beer bottles, or anything else of interest. The officer asks: "Do you know why I stopped you?" WHAT TO DO: Don't guess. Just say "Why?" and listen politely. Do not comment. You know that part where they say, "Anything you say can and will be used against you in a court of law?" They mean it.

CHAPTER TWO: The officer asks you for your license and registration, then takes them back to his car. He's running your information through dispatch or his computer to see what your record is. He comes back to the window and asks you, "Have you had anything to drink tonight?" WHAT TO DO: Say "No" if that's true. If not, say, "I don't want to make any statements." This will be hard to do. It is human nature to cooperate and show what a nice person you are. But if you tell the officer you have had anything at all to drink (even the casual "one beer"), that will give him evidence he can use to arrest you. If you refuse to give him that evidence, it may mean you don't get arrested. If you are arrested anyway, it may mean the charge against you is dismissed because the arrest was unlawful.

CHAPTER THREE: The officer tells you "I need you to step out of the car for me and take a few field sobriety tests, just to be sure you're OK to drive." WHAT TO DO: Say "I don't want to take any field sobriety tests." Don't refuse a direct order– that can land you a charge for obstruction of justice. However, make it clear you are not doing anything "voluntarily." The officer isn't really trying to "be sure you're OK to drive," anyway. He's trying to get more evidence to arrest you. Don't give it to him.

CHAPTER FOUR: The officer asks you to take a "Preliminary Breath Test" (PBT). It's a little hand-held thing about the size of a calculator. It is done right then and there by the side of the road. The officer tells you he needs it to get an idea of how much alcohol is in your blood, to see if you're OK to drive home. He tells you clearly that the PBT can't be used against you in court. WHAT TO DO: Just Say No. (Make Nancy proud). Once again, the officer is lying to you. It can be used against you in court. It can't be used the same way the regular breath test at the station is used, but it is routinely used in court to show that the officer had "probable cause" to arrest you. Don't give it to him. If he arrests you without enough evidence to do so, it doesn't matter if he gets more evidence later on– the case will be dismissed anyway.

CHAPTER FIVE: The officer tells you that you are under arrest for DUI, handcuffs you, and puts you in the backseat of his cruiser. WHAT TO DO: Tell the officer again that you don't want to make any statements, and tell him you want an attorney. Then shut up. Don't volunteer anything or engage in small talk– he'll use that as a window to get you chatting, then use what you say against you later. Give him name, address, social security number, date of birth, that type of information, but nothing substantive.

CHAPTER SIX: The officer reads you a law called "Implied Consent" that says you have to take a breath test at the station. He asks if you will take the test. WHAT TO DO: This is complicated. The law says you must take the test. If you do take the test, the machine (much larger than the PBT, at the jail) will spit out a certificate saying what your blood alcohol content is. The number on that certificate, and the certificate itself, can be used to prove you were over the legal limit of .08. If you blow .15, it triggers a mandatory minimum 5 days in jail, and above a .20 will get you 10 days– more in some circumstances. So– blowing can send you to jail. BUT if you don't blow, you may be charged with Refusal. A first offense refusal is not a crime – it's a civil charge. However, it can cost you your license for 12 months with no restricted license. Restricted licenses are routinely issued on low level and first offense DUIs. The law says you have to blow, so I'm sticking with that. However, it's always good to know what-if.

CHAPTER SEVEN: You hire an attorney. Your lawyer looks at the police reports and watches the videotape from the officer's dashboard camera. She is very impressed with the way you handled the stop, politely refusing to answer questions and refusing the field tests and PBT. You go to court and just stand there next to her. You don't testify. The judge throws out the case against you because even though you blew over the limit at the station, you didn't admit to drinking, or take any tests before the arrest. Whatever caused you to be stopped in the first place, plus the "odor of alcohol" and "red glassy eyes" the officer testifies to were suspicious– but not enough to make out probable cause.

CHAPTER EIGHT: You tell everybody you know how great your lawyer is, and she gets a new car and braces for her kids. You swear off alcohol and take up Yoga instead. Happily ever after, Om Shanti, etc.

The author is a criminal defense attorney with the Tucker Griffin Barnes law firm. The article first appeared on the law firm's blog, tgblawtip.blogspot.com.

Disclaimer: The above is for informational and entertainment purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this information does not create an attorney-client relationship with André A. Hakes or the law firm of Tucker Griffin Barnes, P.C., nor does The Hook accept liability for relying on this information.

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I think anyone who gets caught drinking and driving should just "man up" and take what they have coming. (of course fight it if you have NOT been drinking and they are trying to set you up-thats a different matter).
Don't fool with getting a lawyer, go to court, say "guilty", and take your medicine. Too many these days try to wriggle out out of facing the consequences of their actions)see Dumler, Chris). Those who get behind the wheel stewed to the gills or even a bit tipsy have caused too much sorrow, death, and suffering.
Loss of a drivers license, money paid out in fines,or even loss of freedom by a jail term, is a lot less than loss of the life of an innocent person that you may kill while driving drunk.

Great Advice from Ms. Hakes.

Also: just don't drink and drive in the first place.

What HollowBoy said.

This is the type of thinking and rhetoric that makes people think of lawyers as sleazy. And with good reason in this particular case.. What an incredibly callous thing you say here Mr. Hakes (Dickens would have loved your name). I hope you never have a loved one injured or taken away by one of your clients.

"The judge throws out the case against you because even though you blew over the limit at the station, you didn't admit to drinking, or take any tests before the arrest. Whatever caused you to be stopped in the first place, plus the "odor of alcohol" and "red glassy eyes" the officer testifies to were suspicious– but not enough to make out probable cause."

"Man up"? Since when is getting suckered by a cop who is trying to trick you out of exercising your constitutional right to not incriminate yourself "manning up"? By HollowBoy's logic, we should also all just "man up" by accepting what the government has done to our constitutional rights via Bush's Patriot Act and Obama's ACA. Rights are rights -- it's never the tough guy thing to waive them.

Enjoyed the essay.

I wish I had read something like this back in the day before my unfortunate encounter with over-zealous cops. I got pulled over for accidentally running a red light in another state and got charged with weapons possession because of some junk I had in the car that I hadn't quite finished unloading from a move.

Also, I wouldn't say that this is practical but we should take into consideration that .08 is an arbitrary number. Some people might be quite functional at a .12 while others shouldn't get near a car at a .04 or even sober. So if I am over the legal limit, but driving perfectly fine and I get pulled over for a blown tail light, why shouldn't I try to fight it?

Thank you. Great article, and I hope I won't need it!

I see lots of people driving perfectly sober that should not have a drivers license.

Too bad the writer of this article is completely clueless about the fact that refusing to take Field Sobriety Tests may be used to show probable cause for arrest.

If you refuse the breath test, you must comply with the blood test, if not, that will land you in jail. Will it be dismissed later at trial, maybe, that is the dice you roll when you get behind the wheel after drinking.

Ridiculous - you need to carefully read, it isn't refusing to take the Field Sobriety Test it is this: "I don't want to take any field sobriety tests." Don't refuse a direct order– that can land you a charge for obstruction of justice. However, make it clear you are not doing anything "voluntarily."

There are many people who can't walk a straight line sober...

Jones v. Commonwealth doesn't differentiate between refusing and "I don't want to." Nice job splitting hairs, good luck challenging PC on that.

And you have no right to a blood test unless you're unable to take a breath test. If you refuse the breath, you're charged with refusal.

Ridiculous = clueless

Even better yet, always keep a brand new fifth of liquor under the driver's seat in all of your cars and trucks. While the cop walks to his car to run your info through the various networks, let the passenger window down and dispose of the ignition key. Throw it as far away as you possibly can. You can replace it later very cheaply.

Whip that fifth out, open it, and start taking a few drinks. When the cop returns and sees you drinking, tell him you were so distraught at being pulled over, you just has to take a few drinks to calm your nerves down. Ask the cop if he would like a drink.

You're now drunk in public at best. You're not DUI because you no longer have the ignition key and the ability to in any way operate the vehicle. And no cop or machine can determine if you were DUI before you were stopped and cracked out the fifth or after you cracked it out. No case.

great article , why don't you write about how to rape a someone while they are drunk, or how to kill someone and get away with it or how to sling dope or shoot up a neighborhood. Hope your family gets hit by a DUI driver and he gets away with it.

What a sleazy article, a "How-To" guide on how to get away with a DUI? Personally I think anyone who drinks and drives is a criminal, and deserves to be thrown into jail.

Suzie, I do too but I also think someone who has had one beer or one glass of wine isn't so inebriated to drive, but the tests (which can be off) may indicate they are over the legal limit.

Unfortunately, the way our legal system works - if you buy a good lawyer and do exactly the right things, you will get off or lesser of a sentence than if you were honest and didn't have an attorney or a court appointed attorney.

I'm not sure I see the value in publishing a how-to guide for getting away with a DUI, unless it is in emboldening more people to drive while intoxicated.

For the criminal defense attorney who wrote this piece, how do you live with your slimy self? If a drunk driver killed or injured someone in your family would that make you think twice about this advice you glibly dispense?

All good advice, now try to remember and do all this while drunk!

"CHAPTER SEVEN: You hire an attorney." This is what the article is about. An irresponsible and reckless piece.

CHAPTER ONE should be revised to read: It's 11 pm as you head out the door of your favorite dining establishment. Rain is coming down in sheets. Lovely. Knowing you'd have a couple of drinks with dinner, and planning ahead as you do, a warm and dry cab is waiting at the curb. Two miles and twenty dollars later (or whatever it is), you're turning the key in your door.

I saw the headline for this piece, and I could not stop remembering other "DUI Stories" I have been affected by. Here are a couple: A group of college students on their way home for Thanksgiving, plowed into by a young man who'd had a bit to drink, resulting in multiple injuries and two deaths (not the drunken guy, who was fine). A loving young father, killed by a drunk driver who veered over the line, leaving a young wife and two small children.

In both cases the drunk driver "successfully" avoided charges and jail time, perhaps defended by a "great" lawyer like the one who wrote this how-to piece. To make it worse, in the second case, the lack of conviction meant the widow's family was left financially bereft, since without a "guilty" verdict the insurance wouldn't cover bills.

Are we supposed to feel good that maybe the lawyer got a new car and braces for the kids?

DUI is not a lighthearted little joke. I wish the lawyer could have treated it more respectfully. At least every half hour, according to recent statistics, a drunken driver kills a real person, and it's not "Happily ever after, om shanti, etc." for the surviving families and friends.

It's all the same, scum lawyers make all lawyers look bad, scum cops make all cops look bad. Tit for tat.


An afterthought regarding the headline of this piece - "Know your rights." Driving is not one of them.

@ The Hook: Concur with Rob above. How about a thoughtful response and apology?

Great article... very informative & helpful. It took me 50+ yrs to figure out that most cops are losers whose last thought is to "protect & serve" but actually to harass,confront, meddle & degrade. I've never broken the law & I have no record & I believe that drunk drivers should be severely punished.

If you get pulled over and receive a DUI it's important to get a good lawyer, my brother recently had this problem and got a lawyer from http://www.lickyourtickets.com, he did awesome at helping him with his case!

This piece is awesome! Deny human nature and get away with crime! I hope Andre Hakes will do more pieces on how to commit crimes and get away with it.

On the upside for her, if a drunk driver kills a family of five, any surviving members of the family can hire Hakes to represent them in a civil suit. She wins either way- she is an invaluable defender of rights!

This type of "opinion piece" makes my heart warm for defense attorneys and the Hook. Good job!