The consequences of a DUI conviction can be devastating and can reverberate throughout your life for years to come. You may face incarceration, pay extremely hefty court fines, pay legal costs, pay raised insurance premiums for the next ten (10) years, and have to face the other vast and sundry collateral consequences of a DUI conviction. If you go to trial, you may face the wrath of an unforgiving jury. So isn’t it best to avoid one altogether? Easier said than done, right? Here are some ways to party (safe and responsibly) but avoid a DUI conviction, even if the police have pulled you over on suspicion of drunk driving.
1. Ditch the Designated Driver; Hire a Car Service or Taxi Cab Instead
If You’re the Designated Driver
Time and again, I have represented DUI defendants....who were designated to abstain from alcohol and drive for their friends! While the idea of a designated driver, in and of itself, is well-intended, it can be unrealistic. The indirect peer pressure from your friends (whom you see drinking and having a good time) and the “club ambiance” of your party destination may make it difficult to muster up the will power to say “no” to alcohol, especially if there is a generous drink purchaser among your friends. Also, given California’s “zero tolerance policy” against drunk driving, even one or two drinks may register as sufficiently high enough (0.08% of your blood alcohol concentration or “BAC”) for a driver to be arrested and charged with DUI under California Penal Code Section 23152(b)(Driving with .08 or higher BAC). Even if the designated driver is, for all intents and purposes, sober (or the “more sober” one in the group), it means little if he or she gets pulled over after having one or two drinks. On a Friday or Saturday night, the slightest swerve or aberrant driving behavior can attract the vigilant eyes of watchful police patrols, which abound in Hollywood, Downtown Pasadena, Downtown Los Angeles and other common party areas on those nights.
If Someone Else Is
Even if you are not the designated driver, and, therefore, not responsible for a DUI arrest and conviction (since you’re simply the passenger), you can still be charged with Public Intoxication under California Penal Code Section 647(b) PC. The prosecutor need only demonstrate that you were intoxicated enough to obstruct, interfere with or prevent others from using the sidewalks, streets or other public ways. And there is generally no breath testing to arrest or cite you with public intoxication. In other words, it's the cop's word against yours. So if your designated driver was pulled over, the police may still inquire if you had anything to drink if you are a passenger in the car. If you appear inebriated, it is likely you may be charged with public intoxication.
Were you really “obstructing...a public way” by being the passenger in a vehicle that was pulled over? The case is probably defensible. But you still have to appear in court to answer for the charge. And pay a lawyer to defend you. And you may still be convicted if you lose at jury trial. Better to avoid the headache, right?
The best “insurance” is probably hiring a taxi cab or a car service. Even the cost of a few hundred dollars for a taxi cab or other professional driving service will pale in comparison to the legal costs associated with drunk driving or public intoxication. Also, for your safety and the safety of others, the wisest course of action is to have someone who has had absolutely nothing to drink (and we can, usually, correctly assume that a taxi cab driver or other such chauffeur is completely sober at the time).
Know Your Rights (You’ll Need Them If You’ve Already Been Pulled Over)
2. Learn to Say No To a Police Officer: Don’t Admit Anything
Imagine this: You and a group of friends decide to frequent a bar, nightclub, strip club or other establishment serving drinks. You “only have a couple” and get back on the road. You are pulled over. You are sitting there in your vehicle with the patrol car lights shining bright in your rearview mirror. The police officer approaches and asks you, “have you had anything to drink tonight?” What do you say?
Under the Fifth Amendment to the US Constitution, and the abundant case law that’s come after which addresses the subject of self-incrimination, you are not obligated to say anything that could incriminate you. You have the right not to testify against yourself. Most people like to be candid and open, or think they can obtain leniency from the cop by stating the honest and seemingly not-so-incriminating truth: “I had two beers.” “I had one margarita.” “I only had one.”
Whatever your answer is, it will end up on a police report and your lawyer will have an opportunity to read it in court after you’ve been arraigned on a DUI charge. The prosecutor will use your admission of drinking against you. Even if you had one or two drinks, you have just owned up to drinking.
The better answer is probably, “I have nothing to say.” The likelihood of getting arrested after being pulled over on suspicion of DUI is generally high to certain, anyway. Why make matters worse by helping the prosecutor’s case against you? Even if you are arrested, you can help avoid your own conviction in court.
The police officer will usually write, in his police report, that he smelled the “odor of alcohol emitting” from your vehicle. Or some other boilerplate, stock language that makes you look like a drunk driver. Might as well exercise your Fifth Amendment and not give him the rope to hang you with by giving an incriminating answer.
3. The Field Sobriety Test: Think You Can Dazzle the Officer With Your Performance and Avoid Arrest? Think Again.
Now imagine this: You and a group of friends decide to frequent a salsa establishment. You were enthralled with the club (and the hot girls (or guys) you met, the drinks you had, etc.) and you are chatting with your friends about your experience while to another party destination or driving home. The dreaded “whoop” of a police patrol car thunders in the background. Your heart starts beating fast, crippled with fear. You pull over, terrified that you are going to be made to perform a Field Sobriety Test (FST). Because you drank, you suspect you will fail (even though sober people fail it, too). The police officer asks you to perform the FST. What do you do?
The general response from a driver is to perform the FST. Most drivers, however, don’t realize that they are not legally obligated or required to perform the field sobriety test. Unlike a chemical test (blood or breath taken at a police station), you are not required to perform (and face no legal penalties from) refusing a field sobriety test. Field sobriety tests, unfortunately, are built for failure and even the slightest deviation from the police officer’s instructions (or most minute imperfection in your performance) will incriminate you on the field and, subsequently, in court (with the prosecutor’s DUI case against you). Again, if you’ve been pulled over on DUI suspicion in California, the police officer will likely arrest you whether or not you have performed the FST. So it is the wiser course of action to (politely) decline to take it.
(Now, here is one big caveat: Under California’s implied consent law, by virtue of obtaining your California driver’s license, you have (impliedly) agreed to submit yourself to a chemical test of your breath or blood (or urine for DUI of drugs) if you have been lawfully arrested. So, if you have been arrested and are asked to take a chemical test, you do not have the right to decline. And if you do refuse the chemical test, you will be subjected to one year license suspension if the DMV has found that your refusal was willful).
4. Know Your Limitations
It’s important to be realistic in terms of what you can drink and how much you can drink. If you’re a small frame, lighter-weight person, you probably should reconsider "doing shots." As the saying goes, “one Tequila, two Tequila, three Tequila, FLOOR.” This will help you avoid the legal repercussions that come with public intoxication or driving under the influence of alcohol (not to mention one hell of a hangover).
5. Remember This Number: 1-855-FUK-JAIL
Or, in it’s purely numerical order, 1-855-385-5245. That’s the number to the Coimbra Law Office, a DUI law firm in the San Gabriel Valley which provides powerful, effective and affordable legal representation to people who have been arrested for DUI all throughout Southern California, including Los Angeles, Ventura County and Orange County. You can contact us anytime of day or night. Forgive the slight crudeness of the number, but when you’re panicked because you’ve been arrested for DUI, the only important thing is to know the number to a good lawyer and to quickly remember it. And what better way than to have this easy-to remember number at your disposal? 1-855-FUK-JAIL.
After all, who needs jail? “F–k jail!”
Nothing in this article or anywhere on this site is intended to be or should be interpreted as legal advice or counsel. No promises or guarantees made. Each case is different and subject to individual evaluation by a licensed attorney.
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