“What Should I Do if I Am Arrested?“
How to Avoid Being Arrested for DUI in Virginia and
What to Do if You Are Arrested
Each section of this Webpage is dedicated to one of the many things you can do to prevent being pulled over, arrested, or convicted for DUI. Whether explaining when to call a taxi or how to prevent being confused for a drunk driver, this chapter is meant to empower drivers. It teaches them to avoid being pulled over, arrested, or convicted for DUI, and it also teaches them what to do if they are arrested.
How Much Can You Drink and Still Drive?
There are five ways to be convicted of a simple DUI under Va. Code § 18.2-266:
1) Driving while having a blood alcohol content (BAC) of .08 or above
2) Driving while under the influence of alcohol
3) Driving while under the influence of any drug that impairs ability to drive safely
4) Driving while under the influence of any combination of drugs and alcohol which impairs ability to drive safely
5) Driving while having more than very small and specific amounts of cocaine, methamphetamines, PCP, or ecstasy in the driver’s blood
The law does not require a driver to be drunk to be convicted of DUI. The most common way people are convicted of DUI is by having a blood alcohol content (BAC) of .08 or higher. While a BAC of .08 usually means a person is demonstrating the physical symptoms of intoxication, an experienced drinker may be able to operate his vehicle normally with a BAC of.08. However, such a driver may still be convicted.
Likewise, drivers can be convicted of DUI when they have a BAC of less than .08 but are driving impaired. Drivers may be found guilty of DUI if the police officer can prove they were intoxicated by showing that the alcohol was negatively and substantially affecting their driving. A driver who is texting or talking on the cell phone after having only one or two drinks may be arrested for DUI and his distracted driving can be used as proof that he was under the influence of alcohol.
DUI is not just for alcohol. Any drug that affects your ability to drive safely can potentially lead to a DUI conviction, especially if the drug is used in combination with alcohol. Over-the-counter allergy medicines, cough syrup, necessary prescription medications, and other seemingly innocent drugs can affect drivers’ ability to drive and result in a DUI conviction.
Because you can be convicted of DUI if you have an elevated BAC or if you are intoxicated, it is important to know how each drink affects your BAC as well as how it affects your ability to drive.
BAC can be estimated with the Widmark’s Formula, which can be simplified into two charts: one for men and one for women.
These charts predict the BAC at or around one hour after the drinks have been consumed. BACdrops at a predictable rate of .015 every hour after the body has absorbed all the alcohol in the stomach (usually one hour after drinking stops on an empty stomach).
Therefore, a person who has a BAC of .11 needs to wait at least three hours before he will be near a .08 and almost seven and a half hours before he will be completely sober.
Things like body fat content, the speed at which the drinks are consumed, and whether the driver ate while drinking can affect alcohol absorption rates and metabolism rates.
However, please remember: a driver can be arrested even though his BAC rate is below .08 if he is intoxicated. Inexperienced drinkers or people who simply cannot hold their liquor may act more drunk than other people with the same BAC. Other conditions may affect one’s appearance of intoxication, such as fatigue, medications, or disabilities.
In order to prevent being arrested for DUI despite a low BAC, it is best to know how alcohol or medication affects you before you try to drive. Always err on the side of caution.
Also, many medications and alcohol do not mix. Small amounts of alcohol and normally mild medicines may have a powerful combined effect. Read the warning labels of any medicine you are taking, and ask your doctor before you decide to drink while on any medication (over-the-counter or prescription).
You never know exactly how new medications will affect you. Read warning labels carefully and be careful when driving after taking new medications. If someone has had an unusual reaction to medication while driving, it usually takes a good criminal defense attorney to avoid a conviction. Also, be extremely careful about drinking alcohol while on any medication.
Alcohol is a sedative. The effects of sleep deprivation mimic those of intoxication. A sleepy driver may have blood shot eyes, poor coordination, and perhaps even slurred speech. A sleepy driver who has the odor of alcohol on his breath is even more likely to be confused with an intoxicated driver. Always avoid driving when you are tired, but especially avoid drinking even small amounts of alcohol and then driving when you are tired.
Drivers with diabetes who are suffering from imbalances in their blood sugar or insulin may exhibit signs of intoxication. Extremely low blood sugar can cause symptoms such as slurred speech, poor muscle coordination, dizziness and poor balance. Diabetic ketoacidosis can also cause the production of acetone in the body of diabetics which can cause some diabetics’ breath to smell as if they have been drinking. If you have diabetes and are ever accused of DUI you should make your condition very clear to the officer and ask for medical attention immediately.
In Virginia, the police periodically set up sobriety checkpoints with a roadblock to inspect random drivers for intoxication. There are a number of laws and procedures in Virginia that regulate how sobriety checkpoints work. One of the most important is that the location and time of the checkpoints must be announced to the public before the checkpoints are set up.
The police department usually announces these checkpoints on the “news” section of its website or in local newspapers and internet news sites. These locations are announced so that drivers can avoid the traffic problems caused by these checkpoints.
Another important rule about sobriety checkpoints is that the police cannot stop every car that approaches the checkpoint. Each car that is stopped is chosen by a mathematical formula (such as every fourth or fifth car). However, erratic driving, dangerous driving, or otherwise illegal driving may cause a person to be pulled over regardless of the checkpoint formula.
The most common example is when a driver approaches a sobriety checkpoint, slows down, and then makes an illegal U-turn. The police can pull that driver over for an illegal U-turn. If the driver had executed a legal maneuver and was not driving suspiciously, illegally or dangerously, the police would not be able to stop him.
The final rule about sobriety checkpoints is that checkpoints must minimize the time that each driver is stopped. The officer cannot make you step out of your car unless there are signs of impairment. These signs include the smell of an alcoholic beverage on your breath, slurred speech, erratic driving, blood shot eyes, and other similar signs. If the driver does not exhibit any of these signs, the driver must be allowed to go. If the officer decides that the driver displays signs of impairment, he will ask the driver to pull over to a separate area and continue the investigation there.
The Right to Remain Silent and Field Sobriety Tests
In determining whether a driver is intoxicated, police officers use a variety of clues, tests, and machines. However, the most effective tools they use are their mouths. Officers do not ask casual questions, they gather evidence.
Police will ask several kinds of questions. “Have you have had anything to drink?” “How much have you had to drink?” “When did you have your last drink?” “Where did you drink?” If nothing else, they want you to talk to them so that they can tell whether you are slurring your speech or giving incoherent answers. Do not answer any questions.
During a traffic stop, an officer may or may not have the right to order you to do any number of things including asking you to step out of your car or searching you and your car. However, even if an officer does not have the legal right to do something, he can always ask and get permission.
Legally, there is a fine line between an officer ordering you and an officer asking you to do something. If you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.
If they are not ordering you to do something, you can decline. If they are ordering you, politely obey the order and hire a good DWI attorney. Any evidence found by violating the driver’s rights may not be admissible in court.
Police officers look for erratic driving, empty or open alcoholic beverages, glassy or blood shot eyes, slurred speech, or loss of balance. When they see any combination of these things, they may decide to ask you to perform a field sobriety test (FST).
FSTs are a series of completely voluntary exercises or tests used to determine sobriety. Many of these tests are difficult and can easily be failed by a sober person. You are not required by law to submit to an FST. The police cannot make you take them. Never take an FST.
If an officer orders you to take an FST, the results of that FST may be excluded from evidence at your trial. If you feel that the officer in your case pressured or manipulated you into taking a FST notify your DUI attorney immediately.
The FSTs used by the police in Virginia vary between regions, jurisdictions, and individual officers. Often, officers use variations of the same test that may or may not be more complicated. Most of the tests examine two things: 1) muscle control and 2) ability to follow instruction.
Do not take a FST. FSTs are meant to be difficult, and some sober people cannot pass them. Because these tests measure the ability to follow instructions, the tests begin as soon as the officer is speaking. Failing to follow any instruction is considered evidence of intoxication.
Some of the typical tests include:
• walking heel-to-toe on a straight line, and then turning and walking back a specific number of steps
• standing on one leg without moving your arms and legs
• saying the alphabet, starting from a random letter and progressing forward
• counting between two given numbers, either forward or backward
• touching your nose
• touching your thumb and fingers in a specific order
• performing the Rhomberg Balance test (close your eyes, tilt your head back, and stand still for 30 seconds)
• the Horizontal Gaze Nystagmus (HGN).
Of course, performing the physical aspects of these tests gracefully is important, but the driver must also follow the instructions exactly. Often, the police officer will talk quickly over the noise of traffic, and the driver must try to pay attention while under a large amount of stress.
Wind, rain, snow, temperature, lighting, headlights, gravel, uneven pavement, lightning, thunder, passengers, language barriers or even the police officer can distract the driver and cause him to fail.
Do not be bullied into taking a Field Sobriety test. They are 100% voluntary and drivers never do as well as they think they will. If you have a physical or mental condition that prevent you from performing well on these tests, do not take the any of the tests and tell the officer about your condition.
There is one FST that does not have anything to do with coordination and little to do with instructions: the Horizontal Gauze Nystagmus (HGN) test. Nystagmus is when a person’s eyes quiver involuntarily. Everyone’s eyes exhibit at least a minimal amount of nystagmus under natural conditions but this shaking can become exaggerated under certain conditions, including intoxication.
Police officers will perform this test by asking the driver to follow a finger or a pen visually as it is waved back and forth in front of the driver’s face. They will often shine their flashlight in the driver’s eyes while doing this in order to observe any eye tremors.
The HGN test is actually several tests (sometimes including the vertical gauze nystagmus test). The officer first looks for a lack of “smoothness” as the eyes track back and forth. The officer then looks for tremors when the eye is looking to the extreme left and right. Finally, the officer looks for tremors while the eyes look toward each other at an angle of less than 45 degrees. The driver will be utterly unaware of whether or not their eyes are shaking, and the shaking is uncontrollable.
HGN can be caused by preexisting medical conditions or onsite conditions, but few who have it know that they have it, and thus most people cannot inform the police of preexisting HGN. Because of this, drivers should not submit to an HGN test.
There is rarely anything to be gained by taking any FST. FSTs are voluntary; you do not have to take them. Refusing to take an FST is very weak evidence of guilt.
Tell the Officer if You Are Overheated
Few people know how breathalyzers work and fewer realize how common it is for breathalyzers to produce faulty readings.
Breathalyzers (the machines that estimate BAC based on a person’s breath) work by measuring the alcohol fumes that have evaporated from the blood into the lungs. The machine assumes that a greater amount of alcohol measured in the lungs is consistent with a greater amount of alcohol in the blood. However, as with all assumptions, there are flaws.
Anyone who has watched a pot of water boil knows that the warmer a liquid becomes, the more rapidly it evaporates. Alcohol in your blood is the same. The higher a person’s body temperature, the less accurate the breathalyzer will be. This inaccuracy occurs because breathalyzers do not take a person’s temperature; the breathalyzers simply assume that the person’s body temperature is normal (98.6°Fahrenheit or 37°Celsius). However, if the driver’s body temperature is over 98.6°, alcohol fumes will be excessively high and the machine will return an erroneously high BAC reading. Consequently, if a person has a fever, is dressed too warmly, or is even left in a hot police car too long, his breath test results may be inaccurate.
If you are arrested for DUI and are hotter than normal, let the arresting officer know. Roll down the window, sit by the fan, drink water, and make sure that the arresting officer knows you are too hot. Informing the arresting officer will allow you to either have time to cool down or you will be able to prove in court that you were overheated when tested.
Vomit, Burping, and Mouth Alcohol
Another flaw with breathalyzers is that officers assume that all the alcohol detected came from the driver’s lungs. Alcohol fumes from a person’s stomach, mouth, or throat may be much more potent than fumes from the lungs. A person who has recently consumed alcohol, burped, or vomited will consequently produce a BAC breath result that is much higher than reality.
Because of this problem, police officers in Virginia must “observe” the driver for 20 minutes before they administer a breath test at the police station. They are supposed to look for signs that the driver has burped or vomited in order to validate the results.
If you have vomited or burped within 20 minutes before taking a breath test, make sure you let the officers know so that they can reset the clock and allow another 20 minutes for the alcohol fumes to evaporate. Be careful, people who intentionally make themselves vomit or burp to avoid being tested might be charged with refusal to submit to a breath test.
Know When You Can Refuse to Blow and When You Cannot
There are two types of breathalyzers used in Virginia: 1) the Preliminary Breath Tester (PBT) and 2) the Evidential Test Device (ETD). The biggest difference between these machines is that the PBT is voluntary—you have the right to refuse a PBT. However, you may be charged with refusal to submit to a breath test if you refuse to blow into an EDT after being arrested for DUI.
A PBT is a handheld device that a police officer uses at the scene of the arrest to determine BAC. They are usually kept in the trunk of a police cruiser. They are small, portable machines with a plastic tube or mouthpiece that the driver blows into. PBTs can only be used to justify an arrest; they cannot be used as evidence in a trial.
ETDs are different from PBT in several ways. They are not portable. The machine is about the size of large shoebox with a blow tube that sticks out of the side. They are usually attached to a printer and keyboard. All ETDs in Virginia are the same make and model (INTOX EC/IR II), and they are kept at the police station rather than in police cars. Before blowing into an EDT in Virginia, a driver must be observed for 20 minutes. The driver must also be read a form letter stating that he must submit to the test, that he has the right to observe the results, and that he has a right to receive a copy of the printed results. The results of an EDT can be used as evidence at trial.
Remember, the most important difference between PBTs and ETDs is that a driver suspected of DUI does not have to blow into a PBT, but a driver arrested for DUI must submit to an ETD breath test. Always refuse a PBT.
Pay Attention to Possible EDT Operator Errors
Drivers who are arrested for DUI and brought to the police station to be tested with an ETD breathalyzer must be observed for at least 20 minutes before being tested. If at any time a driver burps, vomits, or places anything in his mouth, the driver’s mouth must be cleared out, and the driver must be observed for another 20 minutes.
Because a driver may not always inform an EDT operator when they have burped or vomited, it is up to the operator to constantly observe the driver prior to and during testing. The operator should not be performing other tests, leaving the room, or doing anything that distracts them from watching the driver for the entire 20 minutes prior to testing. If your operator let someone else perform the observation, or if they were distracted during the 20 minute period, tell your DUI attorney.
Before the ETD test, the administering officer must read the driver a standard form informing him that he must submit to the breath test under penalty of law, and that he has the right to observe the results of the test on the digital screen (not just on the print out). Every driver tested in Virginia should exercise his right to observe the results for himself. If the officer forgets to read this form, the driver should tell his DUI attorney immediately.
When a driver is ready to take the ETD breath test, he will blow at least two times. The machine will take two samples and then print out the lesser of the two readings. If the machine detects any errors, an error screen will appear, and the machine will print out an error message that may be used as evidence of refusal to submit to a breath test. If you had to blow more than twice or if an error message appeared, make sure to inform your DUI attorney. If the operators had trouble performing your test or the tests of other drivers while you were waiting, inform your DUI attorney.
Blowing Into a Breathalyzer 101
There are many urban myths about how to fool breathalyzers, and most of them are false. When people try to fool the machine, they usually end up getting charged with refusal to submit to a breath test and DUI. The machines are built to detect most of these tricks, and the officers have seen them all before.
However, there is a right way and a wrong way to blow into a breathalyzer. When someone has been drinking, there is more alcohol in the deep recesses of that person’s lungs than there is at the top of the lungs.
A driver who holds his breath before blowing into a breathalyzer may artificially increase the BAC reading by 5%, while a driver who hyperventilates may decrease his BAC result by more than 10 %. That is a 15% difference.
The police want you to take a great big breath and blow really hard so that you exhale as much of that alcohol-rich air in the bottom of your lungs as possible. Do not fall for it.
Most breathalyzers require about seven seconds of uninterrupted breath, but they do not require the person to blow hard. Blow as you would normally blow through a straw, not as if you are trying to blow up a balloon. If you have any conditions that keep you from blowing steadily at normal pressure for at least seven seconds, notify the officer before taking the test.
Do not hold your breath or take a big breath before blowing. The less time the air has spent in your lungs the less alcohol will transfer from your blood to your breath. Just blow continuously at a normal pressure until the officer tells you to stop.
When submitting to the EDT test remember to do the following things:
• Blow slowly and steadily for five to seven seconds.
• Breathe normally before blowing.
• Notify the police officers if you have any medical conditions that prevent you from blowing steadily for seven seconds.
• Notify the police if you burp or regurgitate at any point before or during the test.
• Remove any foreign objects from your mouth including dentures.
• Always ask to see the digital readout of your results and keep the printed copy of the results.
• If you are ever threatened with a refusal charge, offer to take a blood test.
• Blow hard like you are blowing up a balloon.
• Take a big deep breath or hold your breath before blowing.
• Stop and start while blowing.
• Pretend to blow.
• Try to suck your breath out of the machine.
How to be Respectful to Officers While Standing Your Ground
Being respectful to police officers is always a good idea. Most officers are good people doing a good job. It can also work to your benefit to treat the police with respect.
The police have control over whether your car gets impounded, parked, or picked up by friends. Also, the police tend to be much less likely to charge nice people with refusal to submit to a breath test, obstruction of justice, or other related charges.
Perhaps the biggest advantage to being nice to a police officer is that, in almost every jurisdiction, the prosecution talks to the officer and asks for their opinion before offering to make a deal or drop the charges. Often, the first question the prosecution asks the officer is, “What were they like?”
However, it is important to stand up for your rights. When you talk to the police, be straightforward and clear with phrases such as: “I don’t want to answer any questions or talk”, “I am not going to take any field sobriety tests or submit to a PBT” or “I would like to please see the results of my breath test.” As stated above, if you ever have any doubts about whether you are required to obey police officers, clearly and politely ask them whether they are ordering you.
If they are not ordering you to do something, refuse. If they are ordering you, politely obey the order and hire a good DUI defense attorney. Any evidence found by violating a driver’s rights is not admissible in court, so do not lose your temper if an officer violates your rights.