In 2004, former Riverfront Times , Phoenix New Times and Tacoma News Tribune scribe Bruce Rushton wrote one of the ballsiest how-to stories thine eyes


Holiday DUI's: Know Your Rights


In 2004, former Riverfront Times, Phoenix New Times and Tacoma News Tribune scribe Bruce Rushton wrote one of the ballsiest how-to stories thine eyes have ever seen, entitled "How to Drink and Drive and Get Away With It." Today, in the Daily Weekly, Ballard DUI attorney Dan Fiorito takes a far more moderate, albeit equally informative, tack in reminding you, the holiday reveler, that if you're going to drink, don't drive -- but if you do get pulled over on suspicion of driving while impaired, here's how you handle the situation. For instance, how many of you knew that refusing both the field sobriety test and on-site breathalyzer was perfectly kosher? Once again, don't drink and drive. But, as Fiorito's essay explains, do know your rights as we head into a time of year when the antennae of local smokeys are particularly erect.

With the New Year around the corner, you may be looking at a calendar full of social gatherings. For those that drink alcoholic beverages, the possibility of intoxication looms large, especially when those double martinis are compliments of the company and you are amongst co-workers and friends. For lack of a better term, getting drunk happens. It is not a crime to drink so long as you are 21 or older. However, as the party winds up and you reach for the keys, you may very well be entering the scene of a crime: your car.

The crime of Driving While Under the Influence of Intoxicants (?DUI?) does not discriminate on any factor other than bad judgment. Hollywood celebrities, politicians, and sports stars are no strangers to DUI. Even invincible special agent Jack Bauer (AKA ?The Caller? and ?Kiefer Sutherland?) is not above the law when it comes to a DUI: he has two. Mickey Rourke recently received a DUI while riding his Vespa scooter. Some may not consider him a celebrity per se, however his role as out-on-the-fringe attorney Brutus Stone elevates him to all-time C list status as far as I am concerned and still puts him one notch above Kathy Griffin, the omnipresent yet easily forgettable star of My Life On The D List. Whether you are a hotel heiress or a bellhop at the Double Tree Inn, the path to a DUI arrest is rather straightforward.

For the potential DUI candidate, the decision to drive after drinking starts with the following assumption, ?I?m not intoxicated.? As the driver gets behind the wheel, the inner voice, known as the better part of reason, spins out of orbit into a galaxy far away. Reason is substituted with rationalization. The driver?s level of self-confidence becomes artificially enhanced by their alcohol consumption and the fear factor that normally precludes bad judgment disappears.

Once the key does turn, the odds of an intoxicated driver getting home without incident decrease. Consider the fact that during the period between Thanksgiving Weekend to New Years? Day, many law enforcement agencies are on DUI Emphasis Patrol. Driving erratically during this time of the year is akin to bathing in a slick of seal blood off the Farallon Islands during the Great White Shark infested months of fall? Not a good idea.

Once a driver is on the road, he or she is subject to a Yellow Pages-sized catalog of laws, any violation of which may lead to a traffic stop. A burned out tail light, a tire crossing outside the ?skip? line, and expired tabs are just samplers on the menu of possibilities. For the driver that has been drinking, a traffic stop is the gateway to arrest, and the impetus for the question that nobody ever wants to be asked by an Officer. That question of course is, ?Have you had anything to drink??

At this point, it is too late to excite the Flux Capacitor to 1.21 jigowatts and get back to the party. The reality now sinks in that it would have been wiser to shell out the cash for a cab ride. Too late. Instead, the driver tries to exhibit they are sober. They want to talk about how little they have had to drink, or to exhibit the graceful artistry of their physical self, which they learned at a summer Cirque Du Soleil Mini-Camp. It is at this point where the driver starts making decisions that can make a bad night get even worse.

Here is some free legal advice. The only way to avoid a DUI charge is to not drink and drive, period. Call a cab. Designate a driver. Don?t drink. If you end up in this situation, there is nobody to blame but yourself. Regardless of your intentions, every driver should be aware of their rights on the road. Nobody thinks it will happen to them. Nevertheless, getting a DUI happens.

The first thing that an Officer will do during a routine traffic stop is ask for the driver?s license, registration, and proof of insurance. Any driver should take inventory of these documents and know exactly where they are before taking to the road. Probable cause for many DUI arrests is premised in part on the fact that a driver ?fumbled? for their documents or was ?thick-fingered.? Make sure your documentation is current, that you know where it is located, and that you don?t need a pair of tweezers to remove it from a vacuum sealed sheathing. Also, always remain cooperative. You are legally required to provide this documentation during a legal traffic stop. Any failure to cooperate at this point is completely ill-advised and may even constitute criminal behavior.

Once the documentation is provided, the Officer, if he or she has any suspicion as to whether you were drinking, will ask you if you have had anything to drink. Anything you say prior to arrest is generally considered evidence that may be used against you in a criminal or administrative proceeding. Remember that your statements will likely be documented in a police report should you be arrested. Also, the Officer will be listening to your speech pattern and looking for characteristics associated with intoxication such as slurred speech.

If the Officer continues to believe you are impaired, he or she will ask you to step out of the car. The Officer will most likely be able to provide a legal justification requiring you to comply. You should exit the vehicle and continue to cooperate. After the Officer asks you to exit the vehicle, he or she may ask you to take a Portable Breath Test (PBT). Regardless of how the Officer phrases the request, this test is completely voluntary and you may refuse it. Evidence from this PBT is inadmissible, as is any refusal to take the test.

In addition to the PBT, the Officer will likely ask whether you would like to take Field Sobriety Tests (FSTs). These tests are also completely voluntary and you may refuse them. Evidence that you refused FSTs is admissible against you to show ?consciousness of guilt.? These tests are designed to detect impairment. It is very difficult to perform these tests to perfection. Many attorneys advise people not to take the FSTs. Regardless of what you choose to do, understand that you may refuse these tests and that if you do take them, your performance will be evaluated for potential evidence of impairment.

After the FST inquiry, the Officer will place you under arrest should he or she believe the requisite probable cause exists. If you are placed under arrest, the law requires the Officer to read you your Miranda Warnings. An individual under arrest for a DUI is not required to make any statements. Any statement you make after a legal arrest is evidence that may be used against you in a criminal or administrative proceeding.

If you are arrested for a DUI, you will be transported to the nearest operable breath test machine (assuming you are conscious and suspected of alcohol use as opposed to drug use). Here you will encounter another list of decisions.

Once you are at the station, the Officer will proceed to ask you a series of questions from a DUI packet. During this period, you will be asked whether you would like to answer a series of interview questions and whether you would like to submit to a breath test. With regard to the interview questions, you have a right to remain silent. Any statements you make will be used as evidence against you. For example, if the Officer asks you what time it is and you say 9:30 PM, but the actual time is 11:00 PM, this minor inconsistency may be labeled as evidence of impairment. If you politely decline to answer any questions, such a declination cannot be used as evidence against you.

In addition to the interview questionnaire, the Officer will read you what are known as the Implied Consent Warnings. Under Washington law, when you drive on the public roadways, you consent in advance to provide a breath test if you are stopped on reasonable suspicion of DUI. The Implied Consent Warnings are very difficult to understand. The law requires only that the driver be provided with an opportunity to make an intelligent decision about whether to take the test. After the warnings are read, you may ask to be put in contact with an attorney. The Officer has a legal duty to make all reasonable efforts to put you in contact with an attorney.

After you have been read the warnings, the Officer will ask whether you will submit to a breath test. In Washington, you may refuse this test, however there is a catch. If you refuse the breath test, you will face at a minimum a one-year administrative license suspension in addition to a one-year criminal suspension if convicted. The suspensions and penalties are even greater if you have prior offenses. Moreover, evidence of the refusal is admissible against you. Prosecutors, the Department of Licensing (DOL), and juries are very unforgiving when it comes to refusals. The better decision in most cases is to submit to the breath test, however, if you do speak with an attorney prior to the test, you should listen to their advice. The decision to take the breath comes with consequences as well. The administrative and criminal suspensions start at 90 days for a breath test in excess of .08 (the legal limit in Washington). The penalties go up if you have convictions for similar offenses or provide breath samples of .15 or higher. Also, if you do provide two samples over the legal limit, or refuse the test, the Officer will punch a hole in your license and forward the arrest report to the DOL. You have 30 days from the arrest date to file a Notice of Hearing with the DOL to preserve your right to challenge the suspension.

On the day or night of your arrest, you may or may not be cited with DUI. However, even if you are not cited with a DUI, you may still be charged at a later time. The Officer will forward their report to the proper authority, which in turn will make a charging decision. Such a decision may take days, weeks, or even months.

A DUI is a very serious charge, and justifiably so. It carries a penalty of up to one year in jail. In some instances it may even become a felony. A DUI is also a very expensive charge. The maximum fine for a DUI is $5,000.00. A conviction for a DUI for a first-time offender may result in court costs of $1,000.00 or above. Keep in mind that this number excludes any fees associated with court ordered alcohol treatment, or the services of an attorney. This number also does not encompass the emotional toll and negative stigma associated with a DUI. While Mickey Rourke?s career may have been in the toilet prior to his latest DUI, most people stand a great deal to lose from such a charge.

In summary, this article is not intended as legal advice. Rather it serves as a reminder that DUI happens if you let it. Calling a cab, refraining from drinking, or designating a trustworthy driver are the superior options to drinking and driving. Nobody ever wakes up and says ?I want to get a DUI.? Regardless, DUI still happens, and if you do find yourself the subject of a DUI investigation, remember your rights, and remain calm and courteous. If you are charged with a DUI, don?t panic. Hire an attorney that specializes in the area. A good attorney will help guide you through the process. While not all cases end in dismissals or reduced charges, some do. These cases are usually the cases where a competent attorney is involved.

Dan Fiorito is a former Pierce County DUI prosecutor and currently devotes a majority of his legal practice to defending persons charged with DUI and other misdemeanor crimes. He may be contacted at or at 206-299-1582.

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