I have been requested by a friend to post a few “do’s and don’t’s” for this holiday season to avoid a DUI or APC. So, while not intended to be legal advice, what follows are some common-sense suggestions.
First, let’s clear the air of the obvious. If you do not drink any alcoholic beverage (that includes beer) and get in a car, you can’t EVER be arrested for DUI or APC. But, not so obvious, is taking drugs prior to getting in a car, particularly prescribed medication. Just because you have a prescription for a drug, that is NOT an exemption for a charge of DUI-Drugs. Thanks to the recent change in DUI law, the presence of any drug in your blood that could impair you (it doesn’t matter whether it actually IS impairing you when you encounter a cop) will get you charged with a DUI! So, check what you might be taking (even if the doctor said to) and treat it like it was Jack Daniels or Southern Comfort when you are around a vehicle. The cops will.
Second, if you DO drink anything during this holiday season, always make sure that someone else is closer to the steering wheel in any car in which you might be. If you have been drinking and are in a car (particularly the front seat), you can be facing a crime of Actual Physical Control (APC) which carries ALL the punishments and problems of a DUI.
Third, have a plan. Safest bet to avoid a DUI or APC if you do have something to drink? Get a room and stay over. Have a designated driver. BUT . . . , get out of the car when he gets out of the car. Don’t stay in it by yourself. See “Second” above.
Fourth, and understand: While I do not encourage or endorse doing it, it is NOT illegal (if you are 21 years old or more) to drink and then to drive a vehicle thereafter. Nope, it is NOT. The law in Oklahoma actually CONTEMPLATES a person to have some alcohol in his system when driving. Check the statute HERE (see section (A)(1)). It is only when he has MORE than .05% that it is illegal OR if you are actually impaired by that which you drank. So, it is NOT an illegal act to drink and drive; no matter WHAT some folks want to believe. It is, in fact, a LEGAL ACT. However, it might not be wise to try to “stay under” that level. The problem is that NO ONE can accurately predict how much you have to drink to get to – or stay under – any particular level. Going by how you “feel” after you drink something is an invitation to problems. So, again, see the paragraphs above.
However, what do you do if you encounter the “ENDUI” monster and get stopped and are – and you will be if the cop smells ANYTHING akin to an alcoholic beverage coming from you car – suspected of DUI? Here you go. This is what I would want my clients to do:
First, be polite. If being yourself is being a smart-ass; be somebody else. It is already going downhill when you are stopped. Don’t make it worse. Give him your license and insurance and keep you conversations to a minimum.
Second, decline (POLITELY!) the opportunity to do ANY test – AND THIS IS IMPORTANT – in the FIELD. That includes any field test like walking a line or “following his pen” or blowing into ANY machine in or at his cop car. As a general rule, if you are being asked to do a “field test” or to blow into a hand held device at the point of being stopped, the cop already is planning to arrest you. Don’t give him anymore evidence.
Third, if you ARE arrested, you will be asked to take a test, and likely a breath test. The cop will read you something about taking the test and the last line is “Will you take the State’s Test”? That test will be given to you at the police station, AND NOT IN THE FIELD AT YOUR CAR. I tell my clients to take it. Why? I have had far more success in keeping a failed breath test out of evidence than a refused test. Plus, you might just PASS IT! If you don’t take it, you will DEFINITELY be booked in jail for DUI or APC. However, always ask to have a blood test after you take that breath test. You have that right. And, that can be very smart. I presently have a case pending where the person had more than a .15% on a breath test and then he had a blood test at the local hospital. That blood test result from the hospital was .00%!!
Fourth, if you don’t avoid a DUI or APC arrest this holiday, call me the next day.
Charles L. Sifers
Attorney at Law
401 N. Hudson, 2nd floor
Oklahoma City, OK 73102
office – 405-232-3388
fax – 405-232-5144
Oklahoma‘s First Attorney Board Certified
in DUI Defense by National College for DUI Defense
(NCDD) under American Bar Association (ABA) Guidelines
Best Lawyers in America in DUI/DWI Defense Specialty, 2010 thru 2015 ed(s).
Lawyer of the Year, Best Lawyers in America, 2014-2015
Oklahoma‘s First Regent (retired) for the National College for DUI Defense
“The People should NOT be afraid of the Government. The Government should be afraid of the People“.