Cops, prosecutors and jurors have forgotten that it’s legal to drink and drive. It is only illegal if you are driving under the influence of alcohol, drugs or a combination the two. So go on and have that glass of wine with dinner.
The prevailing attitude begs the question of why everyone is acting like you can’t enjoy a glass of wine with dinner? Police are arresting and prosecutors are charging anyone with DUI who even merely has alcohol on their breath (or the odor of marijuana) whether they are actually impaired or not.
Unfortunately, cops can basically create their own reality with a little help from the Standardized Field Sobriety Tests (SFST). Any mistakes made while performing these tests will arm the prosecutor with all the evidence he needs to try and prove that you were impaired, regardless of your BAC. And good luck finding a jury that understands or actually believes that it is legal in Washington State to consume alcohol and drive.
Our office is seeing more and more people charged with DUIs that are well under the legal limit of .08. I have seen BACs as low as .02 being charged as a DUI, with the prosecutor arguing that the individual, who was over the age of 21, was impaired based on bad driving and poor performance on the SFSTs.
I recently represented a Hispanic client who was charged with DUI even though his BAC was only .05. The prosecutor pointed to the fact that he performed the SFTS poorly as proof of impairment. Unfortunately, the client didn’t speak english and could have followed the cops instructions even though he wanted to. Of course, the cop didn’t put the language problems in his report.
Officers routinely go through the SFSTs in court to show how easy they are to perform. What they don’t tell the jury is that they have performed these tests many times and have muscle memory which allows them to perform them well. The average driver has never performed these tests, will be nervous, and will be performing them on the side of the road with varying conditions, all of which will affect performance. I can’t do the SFSTs completely sober. A lot of people have problems with them, but all cops see is a drunk.
DUI patrols are in full force and they are looking for ANY reason to pull you over if you are on the road after 9:00 pm. If a cop pulls you over for an equipment infraction (taillight out) and you refuse to perform the field sobriety tests, it would be very had to charge you with any crime. If you do choose to perform the field sobriety tests, it will be up to the officer to decide whether he thinks you performed poorly. He’s having you do the tests because he thinks you’re drunk. Guess how he’s gonna see you do the tests? I watch in-dash video every day where officers claim that a defendant swayed, lifted his arms for balance or had difficulty walking a straight line, and yet the video shows the opposite. If a cop asks you to do the tests, you need to immediately demand an attorney.
I typically advise my clients to take the BAC at the station but it is important to speak to your attorney prior to taking this test. You have a right to speak with an attorney at this point and you should exercise that right. If you do not have an attorney that you can reach after hours, you can request to speak with a public defender.
You can depend on the experienced former prosecutors and experienced criminal attorneys at Durflinger Oliver & Associates PSto fight to defend you. Call today for your free consultation and ask about our military discount and easy payment plans.
~ Natalie Durflinger, Partner