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Old Pueblo Legal Observer

The Holidays and DUI Stops

Posted by Gregory J. Foster | Aug 13, 2014 | 0 Comments

By Greg Foster

As we reach the height of the  holiday season, many of us will find  ourselves at an office party,  family gathering or New Year's Eve  celebration. Invariably, our hosts  will select locations miles from our  homes and, graciously, serve  refreshments that may not be totally free  of alcohol.

It is well understood that impaired driving should  be strictly avoided.  Failure to do so may result in grave physical  injury, severe criminal  penalties and career-ending public records.

What may not be so well understood is what a driver, returning from a holiday soiree, might do when contacted by an officer.

Have You Had Anything to Drink Tonight?

While a driver is searching for creased and coffee-stained copies of   registration and proof of insurance documents requested by an officer   and buried under several layers of long-forgotten, expired registration   and insurance documents, he might hear the question: "Sir, have you had   anything to drink tonight?" In fact, should the investigation proceed,   the driver may be asked many other questions including, but not limited   to:

~ What have you been drinking?

~ How many drinks have you had?

~ When did you start drinking?

~ When was your last drink?

~ Do you believe the drinks you've had have affected your driving to the slightest degree?

Does the driver have to answer these questions? While it is a good idea   to remain courteous throughout this contact, the driver has the right  to  remain silent and decline to answer questions posed by the officer  and  is well advised to invoke that right.

Do You Mind If I Look Into Your Eyes?

The officer may ask the driver to exit his car and the driver should do   so, keeping in mind that the officer is evaluating his balance,   responsiveness, speech, clothing and breath, among other things.

Next, the officer may ask the driver whether he can take a look at the   driver's eyes. This is, very often, actually a request that the driver   allow an officer to administer a field sobriety exercise called the   Horizontal Gaze Nystagmus Test. During this exercise, an officer  purportedly generates information about neurologic disfunction,  one  cause of which may be alcohol. He does so by shifting a pen back  and  forth in front of the driver's face. I have yet to meet a DUI  officer  who is also a neurologist.

The officer may also ask the driver  to participate in other field  sobriety exercises known as the Walk and  Turn test and the One Leg Stand  test. One exercise involves the driver  walking, heel to toe, along a  line and the other mandates that the  driver balance on one foot for  approximately 30 seconds.

In Arizona, a  driver may decline to participate in any of these exercises. If the   driver participates in the exercises, observations made by the officer   are admissible at trial. If the driver refuses to participate in these   exercises, an officer may testify that the driver refused to take the   tests.

Will You Consent To The Specified Blood or Breath Test?

Although a driver may (and should) decline to answer questions and   participate in Field Sobriety Tests, refusal to consent to a blood or   breath test requested by an officer following an arrest for DUI will   subject the driver to serious consequences. In Arizona, a driver   impliedly consents to a blood or breath test when an officer has   reasonable grounds to believe that the driver is under the influence of   alcohol. Refusal to take the test will result in a 12 month suspension   of the driver's license (24 months if there is a prior refusal in the   last 84 months). Additionally, an officer will likely obtain a search   warrant to draw the driver's blood even if the driver refuses to consent   to a blood or breath test. In that case, insult is added to injury;  the  blood is drawn and the driver's license is suspended for a year.

The  driver does have a right to an independent blood test. If the driver  is  released after an arrest, he may obtain a blood test on his own. If   the driver is taken to jail, law enforcement must give the driver an   opportunity to obtain an independent blood test. Because blood alcohol   levels change over time, it is important to obtain an independent blood   test close in time to the arrest.

I Want To Speak To An Attorney.

A driver may request an opportunity to speak with an attorney during a DUI investigation.

Hopefully, the holiday season will bring only good cheer. If it also   brings a Court date, please don't   hesitate to give us a call. Attorneys at Karp and Weiss have provided  aggressive defense of drivers accused of DUI in Courts throughout  southern Arizona.

About the Author

Gregory J. Foster

Mr. Foster practices in the area of personal injury law and criminal law. Mr. Foster has extensive jury trial experience in both areas. In his personal injury practice, Mr. Foster has experience in medical malpractice matters and other personal injury matters, involving serious injury and wrongful death. Mr. Foster, a former Pima County Public Defender, has represented clients charged with a wide range of crimes, from driving under the influence, to more serious, violent crimes.


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