Frequently Asked Questions Regarding DUI Arrests

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  1. Are sobriety check points legal?  Yes, several times throughout Indiana law enforcement officers setup sobriety check points.  As long as they are properly advertised and delineated with signage, they have been found to be legal.
  2. Can’t I just turn on a different road and avoid the check point? Yes you can do this.  However, while the police can’t pull you over for intentionally avoiding a check point, they can follow your car until they find some technical violation to pull you over.
  3. Why do the police give me a breathalyzer at the scene and then another one back at the station? The breathalyzer at the scene is what is known as a portable breath test (PBT).  PBTs are used to develop probable cause that someone has been drinking and driving.  The PBT does not undergo the rigorous testing and calibration required to make the results it provides reliable enough to be admissible in court.  The second breath test, usually given back at the police station, is a breath test given on a “certified instrument”.  These devices are considered scientifically valid.  What this means is that the instrument has undergone calibration, internal testing, validation by the department of toxicology and is generally accepted as a manner by which to reliably determine one’s blood alcohol content.  There is dispute amongst the legal community as to how valid and accurate these tests are.
  4. What are the strange tests the officers make you do on the side of the road during a DUI investigation? There are three field sobriety tests that have been certified by the National Highway Traffic Safety Administration (NHTSA).  These three tests are the horizontal gaze nystagmus (HGN), walk and turn, and the one leg stand.  All three of these tests have a number of “clues” the officer is looking for.  If a specific number of clues is demonstrated in any given test, then the officer will score it as a failure.  It is very important that the officer administer these tests exactly as trained.  If the tests are not properly administered it may affect their validity.  Per the NHTSA certification process, a person who fails all three of the field sobriety tests on average will be at or above a .08 in approximately 87% of the samples.
  5. Can’t I just refuse the field sobriety tests? Yes, the field sobriety tests by their very nature require the subject’s cooperation.   There may be reasons to refuse to take the test and in some circumstances it may be the best thing to do from an evidentiary aspect as well.  If you have any leg or foot medical issues, you should not take the one leg stand or walk and turn.  Further, there are some medical conditions that could impact the accuracy of the horizontal gaze nystagmus as well.  If you do refuse the field sobriety tests, the prosecutor will argue that you refused because you knew you would fail.  This argument may or may not be successful depending on a number of other factors.
  6. If I blow below a .08 I’m good to go and will be released right? Not necessarily.  There are two different laws in play here.  One is operating a vehicle with a BAC above a .08.  To violate this law the prosecutor must just simply show you operated a vehicle and your BAC is above a .08.  The other law normally charged is operating a vehicle while intoxicated.  Under this law, even if you test below a .08, if the officer believes you are intoxicated, you can still be arrested and charged with operating a vehicle while intoxicated.
  7. I should just refuse the certified breath test, then they can’t ever prove what my BAC was, right? In most jurisdictions this is no longer the case.  In many counties throughout Indiana, if you refuse the breath test, then the prosecutor will get a warrant to draw your blood and have your BAC determined directly from a blood test.
  8. OK, well I might as well make them jump through the hoops and see if they draw my blood then right? Unfortunately, in the state of Indiana, if you refuse a certified breath test your license will be suspended for a minimum of 1 year, even if they can’t ultimately prove you were driving while intoxicated.  For many people, the threat of a 1 year license suspension is too much to risk.
  9. If I am arrested for a DUI should I hire a lawyer? Yes, a DUI arrest can have a major impact on your driving record, your ability to drive in the future, your criminal history and under some circumstances can lead to jail time.  This is a serious offense and you should have an attorney represent you and evaluate your case.
  10. Should I take my DUI case to trial? This is a very individualized decision.  It will vary significantly based on the facts of the case.  For example, if your breath test is a .08 vs. a .28 that can have a major impact on the decision to go to trial or not.  Each case is unique and the decision on whether to go to trial is something that should be decided after close consultation with your attorney.
  11. I’ve only had a few beers, I will be below a .08 and should be fine to drive right? Not necessarily.  With the craft beer market booming, many of today’s beers have a much higher alcohol content than the traditional choices like Miller Light or Budweiser.  Additionally, many establishments are serving their beers in much larger than 12 ounce glasses.  Lastly, your body size, metabolism, and last meal can greatly impact your BAC.  As a very general rule of thumb, any more than two 12 ounce beers and you should probably look for an alternative way home.
  12. As long as I take my time and drive under the speed limit, I will be OK to drive? This is definitely wrong.  Especially later at night.  Many of the officers late at night are looking for the slightest of reasons to pull you over to see if they smell an odor of alcohol so they can initiate a DUI investigation.  This could be failing to signal for 200 feet, not coming to a complete stop at stop sign, having a license plate light out, or any other number of technical violations.  If you have had too much to drink, don’t think you can outsmart the police.
  13. I’ve been arrested, who is going to prosecute my DUI case? In most jurisdictions, your DUI case will be assigned to a regular court deputy who handles a variety of criminal cases.  In a few jurisdictions, like Indianapolis, they have prosecutors who specialize in handling nothing but DUI cases.

In summary a drunk driving (DUI) case can be very serious and have very serious implications on your driver’s license and criminal history.  At the law firm of Banks & Brower, the attorneys are former prosecutors, one being a former DUI prosecutor and another being the former Supervisor of the Marion County DUI unit.  If you are arrested for a DUI, contact the Indianapolis Criminal Defense Attorneys at Banks & Brower at 317-870-0019 so we can help you with your case.