As busy Michigan DUI lawyers, there are certain things that we see so often that it’s hard for us to NOT take them for granted. In this article, I want to cover 3 of the most common things: First, that once someone pulled over is asked to step out of the vehicle to take field sobriety tests, he or she is almost certainly going to be arrested for DUI, second, that a person will never sweet-talk or argue their way out of a DUI arrest, and, third, that anyone who refuses to take a breath or blood test after being arrested for a DUI will have his or her driver’s license suspended.
The inspiration for this article came on a recent evening while my wife and I were driving home from visiting our daughter. As we passed a large, well-lit gas station on Woodward Avenue, we saw that a car had been stopped near the pumps by 2 police cars with flashing emergency lights. The driver was standing outside and being watched by 2 officers as he was performing some field sobriety tests. “He’s getting arrested,” I said to my wife. She then asked how I knew that based upon what we saw, so I explained to her that by the time someone is asked to step out of his or her vehicle for field sobriety tests, it’s almost always foregone conclusion that he or she is going to jail.
This may not be of any direct help for anyone who has already been arrested for a DUI, but perhaps it can help him or her avoid wasting their time wondering if, once they had been pulled over, they could have done or said anything differently to have avoided being taken into custody. In the case of a chemical test refusal, we’ll see why the person should have consented to a breath or blood test following their arrest. For as much as there is to know concerning what can be done about a pending DUI, much of that depends on what did and didn’t happen surrounding the initial police contact and the arrest that followed.
Our first point is the simple, real-world fact that the police are really good at knowing when someone is intoxicated. That is, after all, an important part of their job. When the police pull someone over for suspected drunk driving (and by that, I mean genuine suspicion of drunk driving, and not as some kind of pretext for something like racial profiling) they’re very likely to be right. What’s more, once they interact with a driver, by the time they decide to ask him or her out of the car to take some field sobriety tests, it’s a very good bet that the person is going to jail.
One thing nobody ever really hears is someone telling a story about how they got pulled over, put through field sobriety tests, and then found to NOT be intoxicated.
It may sound simplistic to the point of being dumb, but the only way to avoid being arrested for OWI (Operating While Intoxicated) is to either not drive while over the limit, or else not get caught.
Once a person who is over the limit gets pulled over, it’s pretty much game over. Whatever else, the police simply do not screw up and miss the fact that a driver with whom they’re having contact is intoxicated, nor, for that matter, do they routinely mishandle the evidence from a DUI arrest, either.
This brings us to our second point – that there is really no way to talk or argue your way out of a DUI – although that doesn’t stop many people from trying.
To be clear, for anyone currently facing a DUI, what we’re talking about here are things that have already happened, but sometimes, people wonder what effect, if any, their behavior at the time of their arrest had the way things played out, and what, if anything, that can mean for how their case will play out in court.
The good news is that, unless someone tries to bribe an officer, is combative, or otherwise a flaming a$$hole, whatever he or she did or said probably won’t matter very much, if at all, in the court process. It shouldn’t come as a surprise that most people aren’t at their most charming when they’re drunk, and the police know that.
Of course, some people are far more polite and cooperative than others, and having been that kind of person won’t hurt one’s case, but no matter what, it’s not possible to “nice” one’s way out of a DUI arrest.
In practice, it largely comes down to this: if a person was an extremely difficult arrestee, then the police may tell the prosecutor that they oppose any kind of break for him or her. Otherwise, and generally speaking, whether the person was nice or somewhat grouchy about being arrested usually won’t matter much, if at all.
As much as the police see it all, they hear it all, too.
Nobody wants to get arrested for a DUI, so when some people realize that’s about to happen, they’ll try everything they can to get out of it, often telling the police about any and everyone they know who’s a cop.
If excuses or “knowing someone” worked, then there would be no DUI arrests.
The day I began this article, the the news headlines indicated that rockstar Bruce Springsteen had been arrested for a DUI. That, in and of itself, isn’t particularly remarkable; Bruce is yet another in a long list of celebrities and athletes arrested for drunk driving.
As far as “knowing people” goes, however, it’s hard to imagine that any regular person has the depth of contacts of someone that rich and famous, like Springsteen, but that didn’t keep him from getting a ride to the station.
I doubt Bruce resorted to that, but for anyone who does, they’ll quickly learn that such desperate bargaining doesn’t work.
Another useless tactic is to play lawyer with the police. I’ve never been a cop, but I think I can imagine the reaction they have when someone asks them, “what was your legal reason for pulling me over?”
If playing lawyer is bad, then playing Judge is even worse. That happens when, instead of sa person asking an officer why he or she was pulled over, he or she will say “You don’t have any reason to stop me,” or something like that.
One thing is certain: in the history of law enforcement, there has NEVER been a person who got out of being arrested by telling the officer that he or she had no reason or no right to do something.
The worst thing to do, though, is threaten the officer. Asking “what’s your badge number?” or saying “I’m going to file a complaint” is about as useful a tool to avoid arrest as saying “I like strawberries.”
The law works a bit differently in the real world than it does in books, on TV, and in people’s heads. Examination of the evidence is best left to a bona-fide DUI lawyer. If there is a legal issue to be challenged, it will happen in court, not at the side of the road.
When the police pull someone over because they claim he or she was swerving, and that person tests out as being over the limit for drunk driving, unless he or she can later prove, in court, that the officer(s) really screwed up the case, or the botched the evidence, they can pound the table and spout all the constitutional law they find on Google, but that won’t help them a bit.
Our third and final point is, by far, the most practical of all: Anyone who is arrested for a DUI and who refuses to submit to either a breath or blood test WILL have his or her driver’s license suspended.
This is a rather deep subject in its own right, and I have covered it in detail in other articles in the DUI section of my blog. For our purposes here, though, what matters is that the suspension of a person’s driver’s license for refusing a breath or blood test is mandated by Michigan’s Implied Consent law.
While many people don’t specifically recall it, the whole subject of implied consent was covered in driver’s ed. State law holds that, in exchange for accepting a driver’s license, a person thereby gives his or her consent, in advance, to submit to a chemical test upon arrest for an alcohol or drug-related driving offense.
The implied consent law is specific to breath. blood or urine tests that are requested following an arrest.
Those tests are very different from the preliminary breath test (PBT) usually requested prior to someone’s arrest.
The failure to submit to a PBT is a civil infraction. It carries the potential of a fine and points on one’s driving record, but unlike refusing a formal chemical test after arrest, a PBT refusal cannot result in any kind of driver’s license suspension.
By contrast, if a person refuses a chemical test (meaning a breath, blood or urine test) after his or her arrest, the law REQUIRES that his or her driver’s license be suspended. This penalty is automatic.
When a person does not consent to a chemical test, he or she will be given a temporary (paper) driver’s license that is entitled “Officer’s Report of Refusal to Submit to Chemical Test.”
The law does afford a person the right to a hearing before the suspension goes into effect if he or she formally requests one within 14 days of the refusal notice. What’s important, though, is that there are 4 – and only 4 – specific legal issues that can be considered at that hearing, and they focus on the legality of the traffic stop and the administration of the test.
In other words, a person can’t show up at an implied consent hearing and try to get some kind of restricted license. Unless he or she can show that his or her stop or arrest was unlawful, or that he or she was not advised of his or her chemical test rights, or that they otherwise reasonably refused to take the test, then the suspension must be imposed.
Very few of these challenges ever win, and by that, I mean that VERY FEW.
Of course, any good DUI lawyer will go over the facts to see if a person has a chance to contest his or her suspension, but there’s a huge difference between taking someone’s money to fight a losing cause versus pursuing a viable defense.
And to be clear, being drunk or not understanding one’s obligation to submit to the test is NOT a viable defense. Indeed, that’s why a person’s consent is implied beforehand.
This means that, unless the officer asks someone to do something like take a breath test doing a naked handstand, there is almost no excuse for refusing that will fly.
The good news is that unless a person has previously been suspended for refusing a chemical (usually breath or blood) test in the past, he or she can file a petition in circuit court seeking a one-time, hardship license.
Again, this can get rather complex, and I would direct any reader interested in the subject to my recent and previously linked 2-part article covering it in detail.
For now, what matters is simply that anyone who does not consent to a chemical test following a DUI arrest will have his or her license suspended, and, realistically speaking, the only thing that can be done about it is to appeal to court afterward for restricted driving privileges.
If you’re facing a DUI anywhere in the Greater-Detroit area (meaning anywhere in Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair or Washtenaw Counties), be a good consumer, do your homework and read around. See how different lawyers explain the DUI process and how they explain their various approaches to it.
When you’ve done enough of that, start checking around. You can learn a lot by actually talking to a live person.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions, explain things, and even compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. at 248-986-9700 or 586-465-1980.