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What to Do If Stopped?
People arrested for DWI, DUI and DUID need to retain an experienced criminal trial attorney immediately.
A: Drunk driving defense is a highly specialized field within the general practice of criminal defense and law, in general. You are permitted, or course, to represent yourself. Many lawyers will take your case and be unaware of potential defenses due to their lack of knowledge in drunk driving defense as opposed to other areas of practice. If you are serious about your case, you should hire someone with the experience and ability to defend you zealously and effectively.
Most people arrested for DWI play right into the arresting officer's hands when stopped. They do so by being cooperative and giving the officer all kinds of evidence to convict them and suspend their driver's license that the officer would not have otherwise had.
The most common and damaging mistakes include submitting to a variety of coordination tests and answering a variety of damming questions while believing if they're cooperative with the officer the officer might let them go.
By the time an officer asks a driver to step from their car for sobriety testing their belief is that the person is likely impaired and their intent is to take them to jail. If a driver is the least bit impaired they're not going to "pass" these tests.
"Failing" a field sobriety tests is much easier than one thinks! These tests are designed for your failure. Indeed, most sober people cannot "pass" these tests. The results are very subjective and have little to do with whether someone can "complete" the tests. The officer is not looking for that. He or she is looking for "clues" of impairment rather than trying to see if the person can complete the test.
The best thing to do is simply refuse to submit to all testing and refuse to answer any questions until an attorney is present.
Remember, these police encounters are likely being videotaped with audio and video recordings (via a dash mounted camera in the patrol car and wireless microphone concealed on the officer.)
So the best thing to do is say as little as possible, do as little as possible, and to be as polite as possible. Yes, you're probably going to jail, but you were going to jail anyway! Better to beat the rap overall than to lose it badly by making a foolish attempt trying to beat it.
By submitting to testing the driver gives the officer all kinds of things to talk about when he gets on the stand, which in turn, gives them the ability to make someone appear to be much more impaired than they actually were. The deck is clearly stacked against you if you have had ANYTHING containing alcohol to drink and are stopped for suspicion of DWI.
LET ME SAY IT AGAIN. People arrested for DWI, DUI and DUID need to retain an experienced criminal trial attorney immediately.
There are basically three tests officers in Louisiana use:
Nystagmus Gaze Test:
This is where the officer asks a driver suspected of driving while impaired to hold their head still and follow the movement of an object (usually a pen) with their eyes as they move it both horizontally and vertically across the driver's field of vision. What they're looking for is a jerking movement in the eyes, which occurs in everyone after consuming any amount of alcohol, as well as other reasons. They look for jerking when the eye follows the object, or is angled at 45 degrees. This jerking will also occur if the tests are performed too long by fatiguing the muscles that control the eye. The jerking that occurs in the eyes when fatigued is no different than the jerking that occurs with other muscles in the body when tired or strained. Even if Nystagmus is not apparent when an officer first begins the tests, if he or she does it long enough, Nystagmus will occur. Additionally, anyone who has had anything to drink at all will usually demonstrate all clues in this test. Conducted long enough, those who haven't been drinking at all will demonstrate the same clues. Rarely does an officer who has conducted a Nystagmus test say there weren't "clues." Anyone who agrees to take this test for an officer should plan on failing it.
One Leg Stand:
Few people sober or not, can perform these tests without practice without showing "clues" of intoxication. In these tests, an officer will ask the driver to lift one foot off the ground at least six inches, for 30 seconds. They're to do this while looking down at their toe, and counting out loud, one one thousand, two one thousand, three one thousand, and so on. By having the driver perform these two tasks at once, it splits their attention, making both much more difficult. Even if the driver is able to perform this tasks, they'll likely fail the tests, because in this test the "clues" the officer is looking for are very subtle and includes swaying; using arms to balance, (or even slightly moving the hands or arms) loosing count, or putting the foot down and picking it back up during the tests (even though during instructions the officer implies that is okay.) Most people without practice cannot perform these tasks as perfectly as expected without having anything to drink, let alone with a few beers on board. The problem can be worse if the person is overweight, has inner ear problems or has problems with their feet or legs.
Walk and Turn:
Few people sober or not, can perform these tests without practice without showing "clues" of intoxication. In this test, the officer will ask a driver while looking down and his arms at his side to take nine heel to toe steps in a straight line, turn using a series of small steps, and take nine heel to toe steps back to the starting point. During instructions for this test the officer will ask the driver to stand with his heel to toe, and arms down at his side while facing the camera. The "clues" they are looking for actually begin while they're giving instructions, so the test actually begins long before the driver believes. The "clues" in this test include again swaying or moving or using the arms to balance. Other clues include beginning the tests before the officer says; not clearly touching heel to toe with each step; turning without using a series of small steps (which nearly everyone messes up); not counting out loud, etc. Again, without practice this is difficult for someone who hasn't been drinking to do as perfectly as is required not to demonstrate "clues" of intoxication.
It's just best not to play a game you cannot win. Any of these "clues" coupled with a smell of alcohol is about all that's needed to convict someone of DWI.
People arrested for DWI, DUI and DUID need to retain an experienced criminal trial attorney who is aware of and can effectively educate a jury and expose these ploys used by the police to make someone appear much more impaired than they actually are.
Breath and Blood Tests:
NOTE: Breath testing devices employed by the police are inherently inaccurate.
Even their manufacturers will not guarantee their accuracy. They all operate on the flawed assumptions that all people metabolize at the same rate (and release through their breath) the alcohol they have consumed. If everyone had identical metabolisms; eaten the same thing; drank the same thing, and the tests were administered identically, perhaps this device could give an accurate measurement of someone's blood alcohol. It cannot.
Also, few safeguards are taken to insure the sample is not contaminated by residual alcohol found in the throat or esophagus of the accused at the time these test are administered. A subtle hiccup or burp that goes unnoticed by the accused can produce artificially high tests results. A breath alcohol reading above .08 in Louisiana is ALL that is required to convict a driver of drunk driving, no matter how sober they appear outwardly. Most drivers should refuse to submit to any breath testing due to the inaccuracy of these tests and the devastating stigma that would form in the minds of a jury with an artificially high result.
Blood testing, produces a much more accurate result. But the results are typically higher than those obtained by a non contaminated breath test. Anyone who believes they may have had more than few drinks or beers should refuse to participate in all chemical testing. A driver has the absolute right to refuse to submit too breath of blood testing. There can be circumstances where the police are allowed to take a blood sample without a driver's consent. However, this consent should never be given by a driver who has been drinking.
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