Getting a DUI is the most common run in the average citizen is going to have with the criminal justice system. It affects celebrities (Lindsay Lohan), sports stars (Cedric Benson!), local hot shots (hello Walter Jacobson!), everyone. You can’t be too famous to get out of one and it’s such an easy crime for the police to prove they think it is a lockdown conviction. However, don’t think all is lost.
First, what is a DUI?
In Illinois, operating a motor vehicle unsafely while under the influence of either drugs or alcohol, is a DUI. With other drugs, such as marijuana, hallucinogens, or harder stuff, a blood test finding the presence of the drug in you while you were driving, plus evidence that it kept you from driving safely is necessary. Note that if you follow the link, this law is not in the criminal code, it is in the vehicle code. Illinois has a limit to the BAC you can have, which is .08 as it is in most states today.
Now, presumably, if you can operate the vehicle safely and have a BAC under .08 (that’s parts per thousand in your blood, essentially, how much alcohol is in your blood by mass over volume), you’re not violating the law. But if you cannot drive safely with a BAC under .08, you can still be charged with a DUI. It will simply be VERY hard for the State to prove it.
So, how does the State prove you are drunk? Well, there are three steps (and possibly a fourth, depending on how stubborn you are). The first is the preliminary breath test. This is the portable breathalyzer, the lie detector of the DUI stop. This little box is NOT scientifically accurate enough to be admitted into court as evidence, but it will be used by the police officer to establish probable cause. DO NOT BLOW INTO IT! The police officer will tell you that refusal to do so will result in the loss of your license. This is true. BUT SO WILL A DUI! So, you are always best off not hanging yourself at the start and refusing the PBT.
Second, the police officer will do a Field Sobriety Test. These tests, used to establish probable cause that you are indeed intoxicated, are again, not scientifically accurate enough to PROVE that you are drunk, but they are indicators that the police officer gets to use to figure out if you are. This includes the walk and turn (you pace off, heel to toe about ten steps, then turn around), the Horizontal Gaze Nystagmus test (when drunk, your eyes twitch back and forth when looking up and down, left and right, due to your inner ear trying to balance yourself because the alcohol in your blood is making the world “spin”) and the One Legged-Stand test (stand with one leg out in front of you). None of the other tests you see or hear about (alphabet backwards, number sequences, juggling) are of any use or widely used by police officers. Again, you may refuse a Field Sobriety Test as well.
If you fail your Field Sobriety Test you have given the police officer probable cause, not PROOF that you are intoxicated. During this phase and all others, your speech, your eyes (bloodshot? glassy?) your ability to stand unassisted or follow directions, all will be taken into account by the officer and recounted during your trial (and preliminary hearing, and motions to suppress). Upon failure of this test or the preliminary breath test, you’re going to jail.
Third, you will offered the real Breathalyzer. This will happen at the jail as you are being fingerprinted and photographed. DO NOT TAKE THIS TEST! Without getting too technical, the real Breathalyzer (in general use in the State of Illinois is the Intoxilyzer) uses fuel cells to determine the presence of ethyl alcohol in the water vapor you expel from your body. In Illinois the results of this test are rebuttable, that is, you the Defendant, can introduce evidence that the Intoxilyzer is a) not calibrated correctly, b) broken, c) not used properly, d) whatever else you can think of. In other words, if you take it, it’s not the end of the world. But, here’s the repeated advice…DO NOT TAKE IT! To bring in an expert and rebut all that scientific evidence is EXPENSIVE and time consuming.
Yes, the cops will tell you that not doing taking the Breathalyzer (or Intoxilyzer, whatever it is they have) is going to screw you. Yes, there will be a lot of pressure to do it. But, if you breathe in that thing, say goodnight, because now you’re going to be spending THOUSANDS OF DOLLARS on an expert to rebut the evidence you just created against yourself.
The last, possibly fourth way to prove that you are intoxicated is the blood sample. You CAN be forced to give blood, for a DUI, however, few officers will go that far if you simply refuse. However, if you are in a car accident during your DUI, you will most likely have blood taken anyway, if you’re lucky enough to survive it, and that will be preserved for evidence. Clearly, the best evidence of intoxication is blood (and in fact, states like South Dakota ONLY allow blood evidence at trial).
The thing is, a cop is not going to drive you to a hospital to do this, nor do many police stations have blood draw kits at the precinct. You’re going to just have no evidence if you refuse everything. Which YOU SHOULD DO!
Next week: The Consequences.