None of us plan on getting a DUI, but the stark reality is that there were more than 39,000 DUI arrests in Arizona alone last year, and more than 75 perfect of those were business professionals. It is no secret that AZ has the toughest DUI laws in the state with a zero tolerance (even if you blew below a .08 BAC, you would still be charged with a DUI), so it is important for Valley professionals to be in-the-know about what to do if they are pulled over under suspicion of drinking and driving and what their rights are. There is a lot of misconception on what you should and shouldn’t do when you are pulled over, so we sat down with valley’s first, hottest and ONLY DUI Defense Law Specialist Craig Rosenstein of Rosenstein Law Group to finally get in the know. Note: be aware of your rights, but please, be SAFE and RESPONSIBLE on the road!
SL: What exactly are our rights when pulled over under suspicion of begin intoxicated?
CR: There is an old joke among defense attorneys about the DUI exception to the 4th amendment. The 4th amendment protects our rights from unlawful search and seizure. It seems that some of our most precious rights are less precious when we discuss someone accused of DUI. As a result, officers are allowed to stop someone if they have reasonable suspicion that some criminal activity has taken place. In DUI cases, there is usually a driving infraction of some sort. Everyone thinks that most people are pulled over for swerving or some other driving behavior typically associated with drunk driving, but that is the exception, not the rule. Most people are stopped for speeding, or not pulling into the curb lane when turning, which is typical everyday driving behaviors. When the officer asks a driver to step out of the car, they will almost always be arrested and subjected to a blood draw. If you are asked to step out of a car, it is in the driver’s best interest to politely and respectfully request an opportunity to speak with an attorney before participating in the investigation. Some officers will tell drivers that they are not allowed to speak with an attorney and that they legally have to participate in the investigation (one of the above mentioned exceptions to the 4th amendment).
Although technically true, officers cannot make you balance and dance on the side of the road. Therefore, being firm and explicit in one’s desire to speak to a lawyer is essential. Politely demand to speak to an attorney and do not do any of the field tests. Ironically, these field tests are not passable by definition. One can fail the tests, but if one does well and the scoring should reflect a ‘pass,’ it is instead graded as “inconclusive.” Therefore, it is rarely in someone’s best interest, even a totally sober driver’s interest, to participate in these types of field tests.
SL: Any advice on what you should do if pulled over – any questions drivers should ask or say?
CR: Drivers should say very little. Everything is being viewed through a prism that assumes that you are impaired. Officers are given statistics that are often times questionable, and that makes them suspicious of every driver at night. Lobbying groups such as MADD disseminate information like, “2/3 drivers on the road at midnight are impaired.” I once tried to find the source of this information and found out that it was baseless; however, officers don’t know that. Officers only know what they’ve been trained, and as a result are extremely skeptical, which is illustrated through the inordinate amount of sober drivers whose blood is drawn and tested by the crime lab. As a result of skepticism, I always recommend saying as little as possible because your sentences and actions are being viewed by someone whom automatically assumes impairment, and sees “impairment” where it often does not exist.
SL: What are the big “don’ts” when begin pulled over under this suspicion?
CR: The biggest “don’t” is not asking to speak to an attorney right away. Speaking to an attorney protects your rights and prevents you from being wrongfully convicted of a DUI, which happens more times than you may think. In fact, DUI defense lawyers receive batch data containing the Blood Alcohol Content (BAC) blood test results, and these often show huge percentages of the blood tested having either zero alcohol or alcohol levels considerably under the legal limit.
An attorney will advise you on what to do in your specific situation at the time of your traffic stop. After being pulled over and realizing that the officer is questioning you about a potential DUI, you should immediately ask to stop the investigation and speak to an attorney. If and when they tell you no, it is advisable to politely decline to participate, and again request to speak to counsel. Very often, people will be arrested at that time and taken for a blood draw. Most times it is advisable to consent to the draw, but a lawyer would be able to navigate the exceptions to that rule.
Final words of advice: One should never answer the officer’s post-Miranda questions.
•Provide your name, license, registration and insurance
•Firmly but politely request to call an attorney, request a private phone call with your attorney and request to be immediately released to obtain an independent test
•Don’t answer the officer’s questions – your words will be used against you
•Don’t agree to do the eye test
•Don’t agree to do any balancing tests
•Don’t agree to a blood, breath or urine test until you have spoken to an attorney or until the officer advises you that “you’re entitled to no further delay”
SL: What is the law that allows officers to arrest people with a BAC under .08 and why does that law exist if the legal limit is .08?
CR: I often hear people say that this is a zero tolerance state, which can mean one of two things: The punishments for DUI are tough and draconian in an attempt to dissuade the poor behavior of drunk driving, or that someone can be convicted for having any amount of alcohol in their system. The former is true and the latter is only partially correct. When someone is charged with a DUI in Arizona, they are charged with a minimum of two separate charges, and as many as six charges. In almost every case, someone is charged with driving while impaired to the slightest degree and the separate charge of driving with a BAC in excess of .08. Most scientists and biologists agree that all people are impaired to operate a motor vehicle at least to the slightest degree when their BAC exceeds .08. So these two separate charges are basically the same thing. If a chemical test (blood or breath) is done and it shows that the person had a BAC in excess of .08, that is usually the state’s best piece of evidence for both of the charges. However, the state can charge someone with being impaired by alcohol if their BAC is under .08. This has happened before; in that situation, the state would dismiss the charge of having a BAC above a .08 and can proceed to trial on the charge of being impaired to the slightest degree, resulting in a DUI with a BAC below .08. The truth is that these cases are not usually prosecuted. They certainly can be, and there are jurisdictions in the East Valley where it is more likely than not that they will be prosecuted. When I am asked why this is the case, my answer demonstrates my skepticism about the system; the practical effect of this system is that the government wins more cases (whether it is intended this way or not). Uneducated juries, who didn’t like the evidence that the state presented, will sometimes think that they are doing the defendant a benefit and instead of acquitting on both charges, they will acquit on one charge and convict on the other charge. In reality, this doesn’t do the accused any favors, and it will sometimes backstop prosecutors who have bad cases and allow them to get a win.
About Craig Rosenstein and the Rosenstein Law Group:
Rosenstein Law Group, PLLC, is a Scottsdale-based law firm that specializes in DUI Defense Law serving Maricopa County, Pinal County and Pima County, as well as tourists charged with DUI while visiting Arizona. Craig Rosenstein, the law group’s founding partner, is the only DUI Defense Law attorney in Maricopa County that is a recognized as a DUI specialist by the American Bar Association through the National College for DUI Defense, Inc. For more information on Rosenstein Law Group, please visit www.scottsdale-duilawyer.com.