“When you’re driving down the highway at night
And you’re feelin’ that Wild Turkey’s bite
You might get taken to the jailhouse and find,
You’ve been arrested for driving while blind.”
— “Arrested for Driving While Blind,” ZZ Top
By Randall Grantham
As the holiday season approaches, along with the associated office parties and get-togethers, many of us may find ourselves on the road with a few drinks under our belt.
Nobody approves of drunk driving, and I’m definitely not condoning it, but there’s drunk driving and there’s driving after you’ve had a couple of drinks. One is a crime, the other isn’t. A mistaken assumption by law enforcement can cost a person’s money, job, car and even liberty.
This column attempts to shed some light on what goes on after a person is stopped and the police believe that he or she may have imbibed a bit too much. I’m not attempting to tell you how to beat the rap here (although that is my day job). I’m simply trying to educate some people whose only prior involvement with law enforcement is a call for donations from the Police Benevolent Association.
DUI is the only “crime of degree” I can think of. In other words, it’s not necessarily illegal to drive after one, two, three or even more drinks depending on the individual’s size, eating habits and time span. It becomes illegal only when the person’s “normal faculties” are impaired.
This makes the DUI law unique. It’s illegal to possess even a minute amount of drugs. It’s a crime to steal just a little bit of money. And just putting your hand a little bit inside a car is a burglary. But to be guilty of DUI, your ability to see, hear, walk, talk, make judgments or act in emergencies must be impaired because of your consumption of alcohol (or drugs).
It’s not illegal to drive exhausted, or to drive distracted (by the cell phone, your cigarette or your sandwich), but I have represented many people who have gotten pulled over because they swerved while flicking the ash or looking at their cell phone. If you have a smell of alcohol when stopped, there’s a good chance the officer will investigate further.
His investigation usually starts with a few “casual” questions, like, “Have you been drinking?” Unless you tell him you single-handedly killed the keg, your answer won’t matter much because they’ve already decided that you have been drinking or they wouldn’t ask.
Next come the “stupid human tricks.” In an attempt to test your “normal” faculties, you will be asked to do a series of physical exercises that you’ve never done before: youch the tip of your nose repeatedly with the tip of your finger while standing feet together, eyes closed (no peeking) and head back; walk an imaginary straight line, heel-to-toe for nine steps and pirouette to return on the same invisible line; stand on your head and spout BB’s. (I made the last one up.) These tasks all seemed designed to make you look like a fool, if not drunk.
You don’t have to take these tests, but if you don’t, you’ll probably be arrested on the spot.
Also, you may do good enough to have the cop let you go. And be aware, there’s probably a camera in the police car filming you and a wireless microphone on his uniform. So be careful what you say, “I couldn’t do this if I was sober.” That is not something I like to hear.
After the field sobriety exercises (they’re not allowed to call them tests), you’re either sent on your way or hauled off in cuffs. If the cop says the last exercise he wants you to do is put your hands behind your back, it doesn’t look good.
The breath test is next. Whether to take this test or not is your call. It won’t make a difference that night, because you’re already under arrest when they ask you to take it and they can’t “unarrest” you, even if you blow .00.
If you refuse the test, your license is suspended on the spot. If you take it and blow .08 or over, your license is suspended on the spot. If you take it and pass, you may keep your license. But if you take it and fail you can use your little-known right to have an independent blood test done at your expense.
Every situation is different. Make your own decisions, but this is what you can expect. Be careful and be safe.
Randall C. Grantham is a lifelong resident of Lutz who practices law from his offices on Dale Mabry Highway. He can be reached at . Copyright 2009 RCG