James R. Balmforth: Can You Get A DUI Without Being Pulled Over?

Yes. Yes You Can.

This is a step-by-step guide as to what you should do if you get pulled over for a DUI (Driving Under the Influence) or a DWI (Driving While Impaired). This is not a substitute for using common sense and avoiding behavior that might put you in jeopardy of being stopped for a DUI or a DWI. It is also not a substitute for getting assistance from a qualified, competent attorney. When in doubt, contact your lawyer.

• Find a safe place to pull over: Remember, as soon as the police officer decides to pull you over for a DUI or a DWI, he starts making observations that he will put in the police report. To initiate the stop, he has already noted something that he thinks shows you are driving drunk or impaired. You cannot do anything about those observations at this point, but the police report can have a significant impact on the outcome of both your criminal trial and any hearings related to the suspension or revocation of your driver’s license. One of the first things the officer will most likely note is how you pull over. If you drive erratically, slow down too abruptly, or pull over in an unsafe location, the officer notes it in the report and it is just one more tick in the drunk or impaired column.
• Don’t make any sudden or suspicious movements: Officers are trained to be cautious and to protect themselves, first and foremost. They always approach the car from behind so they have a clear view, and so the driver would have to turn completely around in order to shoot or attack them. So, do not make any sudden movements, do not twist around to watch the officer approach, do not jump out of the car or try to crouch down in embarrassment. In fact, your best bet is to keep your hands on the wheel at 10 and 2 o’clock until the officer approaches your window and asks to see your identification.

• Be polite: The obvious reason to treat the officer respectfully is that you are far less likely to be arrested if he believes you are sincerely respectful. If you are rude, insincere, or hostile, the officer is much more likely to take offense, arrest you, and do everything possible to get you convicted, including writing a very incriminating police report. If the officer asks you to step out of the vehicle, you must comply of face the very real possibility of being charged with resisting arrest. Be very helpful and friendly; as though you have nothing better to do than comply with the officer’s requests because, frankly, at that moment you do not. Of course, avoid coming off as insincerely helpful or friendly, as that can be just as off-putting as direct sarcasm.
• Do not answer any potentially incriminating questions, but do not lie: The anxiety of getting pulled over is something police officers are trained to use against you. In this kind of situation, people are far more likely to incriminate themselves, particularly if they are not telling the truth. You DO have to give your name, license, registration, and insurance information to the police officer, but if the officer asks you if you have been drinking, or how much and you are concerned that you might incriminate yourself simply say, “I’m sorry, officer, but I’ve been advised not to answer any questions.” You will almost definitely be put under a lot of pressure at that point, you may be arrested, and you may automatically lose your license, but all of those things can be much less serious than spending time in jail because you incriminated yourself. If you have had only one or two drinks, you should use your discretion about saying so. With few exceptions, one or two drinks will not put you over the legal limit, but that varies from person to person and drink to drink, so when in doubt, say nothing. Lying is never a good idea. If you answer a question, answer it truthfully. If you lie, and the officer knows it, the fact that you lied can, and most likely will be used against you in court.

• Refuse a field sobriety test: You are under no legal obligation to perform a field sobriety test. Field sobriety tests are one of the most effective tools at the officer’s disposal for collecting evidence against you, not because they are reliable indicators of intoxication, but because it gives the officer subjective observations upon which to base his decision that you are intoxicated. Again, refusing a field sobriety test may result in a suspension of your driver’s license, but would you rather have a scientific examination say you were not drunk or impaired (and therefore not going to jail for DUI or DWI) or would you rather have a jury hear an hour of testimony from a uniformed police officer about how stinking drunk he subjectively thought you were based on a very unscientific field sobriety test?
• Refuse a hand-held breathalyzer: Roadside breathalyzers are notoriously unreliable, and there are countless ways to skew their results. Refusing to blow will almost always result in an automatic suspension of your license, but again, that is much less serious than going to jail. So, refuse to blow while on the road. On the other hand, you may be required to submit to a number of other tests including blood draws or a more sophisticated breathalyzer at the police station. If you have been taken into custody and are being required to submit to these tests at the police station, do not refuse or you may be resisting arrest.

• Take a chemical test at the police station: You are obligated by law to take a chemical test at the police station. In most states, you can choose between a blood test or breath test. Many DUI lawyers advise people to take the breath tests because they are more unreliable, so their validity can be more effectively attacked in court.
• Once you have been released, write down everything you can remember about your arrest: The more notes you take about your arrest, the easier it will be for your attorney to fight the charges against you. Fresh memories are often more accurate, so do this as soon as you can. If possible, include the following details in your notes:
I. what you were doing and where you were before you drove
II. how much you had to drink and what you were drinking
III. how long after you were drinking before you were stopped
IV. how the officer behaved and any instructions he gave you
V. what you said to the officer and how you responded to his instructions
VI. where you were pulled over
VII. when and if you were read your Miranda rights
VIII. when and if you took the chemical test and how long it had been since your drank
• Contact an attorney: You both need and deserve an experienced DUI or DWI defense attorney who will fight for your rights. The single most important thing you can do for yourself is to find a qualified attorney who knows the applicable laws and can help guide you through the legal process.
You can be charged with DUI in Utah without driving a car after drinking. This is possible because the intent of Utah drunk driving laws is to protect the public from the injuries and property damage drunk drivers can do. Utah DUI laws make driving or being in actual physical control of a vehicle while under the influence of alcohol or controlled substances a criminal offense. Your physical control of a vehicle after you have had too much to drink can get you convicted of drunk driving in Utah and expose you to harsh penalties. Most of the time, a driver arrested for DUI in Utah is stopped after police observed the driver weaving across lanes or committing another infraction.

When a police officer smells alcohol, hears slurred speech or observes other signs of intoxication, the officer will ask the driver to perform a field sobriety test and, in most cases, makes an arrest. DUI laws also allow the arrest of someone who seems to have had too much to drink and has physical control of a vehicle, regardless of whether the individual was observed driving. Utah law allows the arrest of someone who has driven or attempts to drive, or who indicates they have driven or will drive while allegedly drunk or on intoxicating drugs. In a defining case, an individual whose blood-alcohol concentration (BAC) was later determined to be more than the legal limit was found asleep in the driver’s seat of a car with its engine running. The car was on private property, but with easy access to a public highway. When the individual was awakened by a police officer, the defendant attempted to restart the car and drive off. Though police did not wait for him to drive the car, the defendant was found to have been in physical control of the vehicle and guilty of DUI. Another scenario where a DUI arrest might result is a pedestrian observed to be talking loudly and having trouble walking, then clumsily unlocking and climbing into a car. A police officer would have probable cause to stop and charge the individual with DUI based on their physical control of a car. Further, Utah courts weighing an individual’s innocence or guilt were required to consider:
• Where and in what position the defendant was found in the vehicle
• Whether the vehicle’s engine was running
• Whether the defendant was awake or asleep
• Whether the vehicle’s lights were on if the defendant was apprehended at night
• Location of the vehicle’s keys
• Whether the defendant was trying to move or had moved the vehicle
• Whether the defendant’s vehicle was located on public or private property, and
• Whether the defendant must have driven to the location where apprehended.
A person shall be deemed not to be in actual physical control of a vehicle if:
• The person is asleep inside the vehicle
• The person is not in the driver’s seat of the vehicle
• The engine of the vehicle is not running
• The vehicle is lawfully parked, and
• Under the facts presented, it is evident that the person could not have driven the vehicle to the location while under the influence of intoxicating liquor, a controlled substance or a prohibited substance.
But even if, after drinking, you are sleeping in the back seat of your legally parked and not running car, you can be arrested for DUI. You could be arrested if you admit or imply that you drove after drinking, or if police are responding to complaints about you or a car like yours. For example, if your car is parked badly and/or there are skid marks indicating you stopped abruptly when you parked, police may have probable cause to suspect you drove to that spot while under the influence. If you are parked far enough from any drinking establishment to make the walk to your parked car unreasonable, police could suspect you drove there. The penalties for a DUI (driving under the influence) (also called “DWI” (driving while intoxicated)) offense can be serious. If you’ve been arrested for DUI and want to fight the charge, you should understand all of the available defenses. With a viable defense, you might be able to persuade the prosecution to drop or reduce the charges, prevent the suspension of your driver’s license, or win an acquittal at trial.
In a DUI case, the prosecution must prove the person being charged (the “defendant”):
• drove a vehicle, and
• was “under the influence”—meaning the person was either impaired or had a prohibited amount of drugs or alcohol in his or her body.
Most DUI defenses target one these two components because the prosecution must prove both to get a conviction. The defenses available to a DUI defendant depend to some extent on state law. In some states, you can’t be convicted of a DUI unless you were actually driving a vehicle. So, if you were asleep in a parked vehicle in one these states when police arrived, you probably have a good defense. But most states don’t require proof of actual driving for a DUI conviction. All the prosecution needs to prove is that you were “operating” or “in actual physical control” of a vehicle while intoxicated. In other words, you can be found guilty even if you weren’t caught behind the wheel with the car in motion. When police don’t use proper arrest procedures, it can sometimes provide you with a good defense to a DUI charge. Defenses related to arrest procedures typically involve arguing that because police didn’t follow the law when stopping or arresting you certain evidence should be thrown out. Generally, police need probable cause to stop your vehicle, and if they’re going to arrest you for a DUI, they need probable cause for that too. For the traffic stop, police have probable cause if there’s reason to believe the driver or someone else in the vehicle has broken the law. (DUI checkpoints and roadblocks are, however, an exception to the probable cause rule.) Basically, any traffic violation will suffice. But if police pull you over without a legitimate reason, a court is likely to say all the evidence subsequently obtained is inadmissible in court. A valid traffic stop doesn’t necessarily make a DUI arrest proper—the officer must also have reason to believe the motorist was in violation of the state’s DUI laws. Probable cause for a DUI arrest usually comes from the officer’s observations and sometimes breath-test results. Both forms of evidence can be tricky to challenge. An officer might say you performed poorly on field sobriety tests (FSTs), smelled of alcohol, and had slurred speech. For most judges, that would be enough for probable cause. And in most situations, breathalyzer results showing your blood alcohol concentration (BAC) was over the limit are going to make challenging probable cause an uphill battle. Occasionally, Miranda warnings come into play in DUI cases. Police are generally required to give Miranda warnings prior to questioning a suspect who’s in police custody. So, if a DUI suspect who’s in police custody and hasn’t been given Miranda warnings makes an incriminating statement in response to police questioning, the statement probably can’t be used in court against the suspect.
All states have two types of DUI charge: one based on actual impairment (an “impairment” DUI) and another based on the amount of drugs or alcohol in the driver’s system (a “per se” DUI). For proving impairment DUI, the officer’s observations can be an important part of the prosecution’s case. An officer’s observations of impairment might include:
• poor FST performance
• the odor of alcohol
• bad driving
• bizarre behavior
• slurred speech, and
• bloodshot eyes.
To beat a DUI charge, the defense might need to challenge the significance of an officer’s observations. It just depends on the circumstances, but it can be difficult to convince jurors that the officer’s conclusions about the driver’s intoxication were wrong. One way to challenge an officer’s observations is to bring in witnesses who were present when you were arrested and saw things differently than the officer. Unfortunately, in many cases, there aren’t any witnesses. Or, if your witness was a passenger in your car, the prosecution might argue that your witness is biased.