Coming home after an office party or a restaurant where you had a few drinks and seeing a police cruiser with lights flashing in your rear-view mirror is an anxious moment for anyone. After you pull over, the officer comes to your window and asks if you have been drinking. Although you are hesitant to answer, you say that you had one or two. The officer asks you to step out of your car and to perform certain balance or field sobriety tests (FST). You are exhausted after a hard day at work and your back or knees are acting up again, but you feel you performed well. Nevertheless, you are arrested on suspicion of DUI and taken to a police station and asked to take a breathalyzer. The results are barely 0.08%, the legal limit at which you are presumed to be under the influence. Your license to drive is now at risk, your insurance premiums are set to skyrocket, and you will have to explain all of this to your spouse, friends and employer.
A DUI is a misdemeanor, unless you were involved in a serious accident injury or fatality, have 3 prior DUIs within 10-years, or had a prior felony DUI on your record. But although you feel that just pleading guilty is your best option, think again, and then call DUI defense lawyer Paul Moraski.
Your Rights if Stopped for DUI
Because you are being questioned by a police officer does not mean you are obligated to answer any and all questions posed to you. You are only required to produce your driver’s license, registration, and proof of insurance but nothing else. If asked by the officer if you have been drinking, politely decline to answer.
Unless you are on probation for a prior DUI, you are also not obligated to perform any balance or field sobriety test such as walking heel-to-toe, closing your eyes and touching your nose, balancing on one foot, or counting backwards. If the officer asks you to take a PBT, or preliminary breath test, at the scene, you can decline this as well. Even if you did take the PBT and “failed,” the results are not admissible and your license cannot be suspended based on this alone. However, its roadside results can form the basis for probable cause to arrest you for DUI.
There are no legal consequences for refusing any of these requests. But there can be if you refuse breath or blood testing or if your breath or blood test results indicate your blood alcohol concentration (BAC) level is at least 0.08%.
You also do not have the right to talk to an attorney before deciding whether to take the breathalyzer. If you are facing felony DUI charges or were involved in a serious injury accident or fatality, it is often not in your best interest to take the test if you had been drinking.
When charged with a DUI, the police will submit the results of your breath or blood test if at least 0.08%, or your refusal, to the Registry of Motor Vehicles (RMV). If you are a first offender over the age of 21, your license will be suspended for 6-months. Repeat offenders face years of license suspension and up to a lifetime if they have 3 prior DUI convictions.
Be aware that you only have 15-days from the time you are given a temporary license to challenge your license suspension or it is waived.
Civil and Criminal Proceedings
Civil License Suspension Hearing
DUI or OUI (operating under the influence) matters have civil and criminal proceedings. The civil matter only concerns the status of your driver’s license by the RMV. For a first offense, you risk losing your driver’s license for one year, though you can apply for a restricted or Cinderella license. You are entitled to a hearing if you request one in time before a hearing officer at the RMV. Having an attorney at this hearing is essential to challenge your stop, the police procedures, probable cause for arresting you, and the results of the breath or blood test. There are dozens of ways to contest the accuracy of a breath or blood test and experts are often needed to offer their opinions after reviewing the procedures used. We can also obtain and review all service and maintenance records on the breathalyzer, analyze your medical condition on how it may have affected the test results, and other scientific or factual explanations for why the test results are not an accurate reading of your BAC results.
DUI Criminal Proceeding
You also have a separate criminal proceeding pertaining to your DUI charge. Be aware that even if you refused testing or your BAC was below 0.08%, you can still be charged with DUI. At your first appearance or arraignment, we will plead you not guilty and proceed to fully investigate the circumstances of your stop, the police conduct, your performance on any pre-arrest tests, and provide the best available defense to the accuracy of the breath or blood test that you took. Most cases are settled at the next hearing or pre-trial conference. We will have thoroughly investigated your case by that time and if applicable, presented any motions to dismiss or to exclude certain evidence.
First offenders face up to 2.5 years in jail, but most are sentenced to probation, a fine with attendant costs, community service, and required to attend a treatment program. Once probation is completed, your charges will be dismissed but will still count as a prior conviction for subsequent convictions.
Call Paul Moraski at (978) 397-0011 for a free consultation about your DUI case and how we can offer you the best chance for a satisfactory disposition.