“Really Occifer, I’m Fine:” What to Do, and Not Do, If You’re Stopped for Drunk Driving

This is an article I have mixed feelings about writing. I in no way want to promote drunk driving. To the contrary, I believe that in the era of Uber and Lyft, there’s no excuse to get behind the wheel of the car if you’ve had too many, asshole. Unfortunately, however, many of us think we’re fine when we’re not, and we end up driving when we have no business doing so. If so, and if you find yourself in the unfortunate position of being pulled over, I have some words of advice.

You might be asking yourself: Why would I take legal advice from a suburban mom who writes about her pathetic parenting woes and food festivals? In my former life I was a prosecutor and, like most new prosecutors, I tried a ton of drunk driving cases. I can tell you unequivocally that, barring sexual assault, they’re some of the most challenging cases for a prosecutor to win. It’s one of the reasons why you never see Jack McCoy trying one on “Law and Order.” He likes to win, and drunk driving is a big loser.

The reason they’re so difficult is that every juror is listening to the evidence thinking, “That could be me.” If the facts are egregious (ie, the defendant peed himself, threw up on the officer, couldn’t walk, had a half-eaten bucket of KFC on his lap), the defendant will certainly take a plea. When going to trial, however, the prosecution is typically faced with a defendant who shows up in court looking neat, clean and presentable, and the evidence is often not very damning. Maybe he weaved a bit or was speeding (who hasn’t???), maybe he had a beer or two, which explains the stench of booze coming from his breath (haven’t we all???), maybe he was nervous or tired, which is why he didn’t seem sober (sounds plausible!). In other words: He’s just like you, and you’re no criminal, right?

Sometimes there’s evidence of field sobriety tests, which are a series of tasks an officer asks a driver to perform if she suspects him of drunk driving. They’re simple tasks like walking a straight line or touching your finger to your nose, but they’re not random. They’ve been determined by the National Highway Traffic Safety Administration (NHTSA) to be an effective measure of whether a person is actually impaired. Unfortunately, however, they’re easy for a juror to dismiss, as most people can explain away the failure to walk in a straight line amid flashing police lights, cars whizzing by and general “I’m being stopped by the police” anxiety.

Sometimes there evidence of a blood alcohol test. A person is considered “under the influence” if their blood alcohol level is .08% or higher. This is typically obtained via a breathalyzer, which is a test where you blow into a machine twice and it measures the level of alcohol in your blood. You don’t have to take this test, but in Rhode Island you can be charged with a separate offense of refusing to take it, and you can lose your license – not a great option. On the other hand, taking the test provides the prosecution with some great evidence, but it’s definitely not irrefutable.

The prosecution will also present the police officer’s opinion of the defendant’s sobriety based on her general observations like he smelled like booze, he was unsteady on his feet or he slurred his words. The arresting officer — and perhaps her partner or the booking officer — however, are typically the only witnesses who testify. There are likely others out there who could speak to the defendant’s sobriety, such as the bartender who served the last drink or the friend who was with the defendant all night, but it is highly unlikely these people will testify at trial. First, the police don’t have the resources to fully investigate every drunk driving case and find these people. Second, what are the chances a bartender who over-served someone or a drunk’s good friend will testify favorably for the prosecution? Almost zero….

Bottom line: Evidence in a drunk driving case is often thin and/or easily explained away. Therefore, if you’re pulled over after having a few, your job is to further minimize the evidence against you. You can’t refuse an officer’s request to get out of the car, but you can refuse to perform field sobriety tests. Don’t talk, because chances are you’ll say something stupid. When the officer asks if you’ve been drinking, feel free to say “I had a couple of beers.”  This will set the stage for your defense and explain the smell of booze on your breath. After that, the only thing you should say is, “I’d like to call my lawyer.” You’ll probably still get arrested, but at least you’re not creating more evidence to bolster the prosecution’s case. Then, hire an experienced lawyer. These cases typically get handed to the newest, most inexperienced prosecutors, and any decent trial attorney can run roughshod over a neophyte prosecutor and one or two cops. She might not be able to convince a jury you’re innocent, but she can certainly create reasonable doubt, and that’s all that’s needed for an acquittal.

Perhaps you feel a bit more relaxed now about drinking and driving. Well, don’t. While you’re likely to get off, there will always be a record of your arrest and a good attorney is wicked expensive, like $10,000 expensive. Also, you’re a total douche for putting everyone’s life in danger. So, if you’ve had too much to drink and are thinking of getting behind the wheel of a car, just take the freaking Uber … please.

Please note that Motif is not your attorney — we’re more like that kid your mother warned you about — and taking legal advice from us is as stupid as, well, drunk driving.