1. You look in your mirror and a cop is lighting you up.
If you’ve been drinking, be prepared for this question to come up immediately: so how much have you had to drink tonight? It’s not advisable to lie. It’s also not advisable to tell the truth. Simply say: officer, I don’t feel comfortable answering your questions. You do, however, have to provide your license, registration, and proof of insurance.
Do not crack your window one inch to pass your paperwork to the cop. This will just make the cop mad and raise his or her suspicions.
2. Please step out of the vehicle.
You must comply. If not, you could be charged with obstruction of justice. Generating Probable Cause to Make an Arrest
3. Would you like to take some voluntary field sobriety tests?
The answer is always unequivocally NO! There are three main field sobriety tests (FSTs) the cop will try to administer. You must be advised that they are voluntary, because the law says so. These tests are designed to generate probable cause to arrest you.
Horizonal Gaze Nystagmus: This test measures ow much your eyes twitch (nystagmus) when following a stimulus (usually a pen). This test is usually a dead giveaway if you’ve been drinking. Don’t do it.
Walk and Turn: This test will have you take 9 steps in an imaginary straight line, pivot on one foot, and walk back. The rationale is if you’re drunk, your balance will be off. Again, don’t do it.
One Leg Stand: This test requires you to balance on one foot with your other foot’s big toe pointing straight up. Many people can’t even do this sober.
Portable Breath Test (PBT): This test is voluntary and the result cannot be used to prosecute you. It is only used to generate probable cause to arrest. There is much debate on whether to take this test. Many lawyers will unequivocally say never take any voluntary tests. HOWEVER, by volunteering to take the portable breath test, you will have an idea of what your BAC level is, and that will be relevant in deciding on whether or not to take the evidential test. (See section 4) The argument against taking the portable breath test is it will give the cop another reason to arrest you. But, bear in mind, even if you don’t take any of the other three FSTs, if you smell like alcohol and the cop thinks you’re drunk, you’re probably going to jail.
4. What happens when I’m taken back to the station?
You will be Mirandized a second time, after being Mirandized on the field. The cop is required to allow you to speak with an attorney if you so desire. We recommend you exercise this option. You will likely be put in contact with an on-call public defender, who hopefully can advise you whether or not to take the breath test. Then, the cop will read you a sheet advising you of the “Implied Consent Warning”. This is an advisement of what consequences will occur if you do not take the breath test back at the station. If you have never been convicted of a DUI before and if you refuse to take the test, your license will automatically be suspended for one year. Additionally, if you refuse to take the test, the cop could apply for a telephonic search warrant to forcibly extract your blood.
If you take the test and your BAC is above .08, the Department of Licensing will suspend your license for 90 days. The cop will give you a form explaining how to request a “DUI Hearing”. This will give your attorney an opportunity to fight your imminent license suspension.
5. Will I be released from jail?
It depends on many factors. Many counties will release you on your personal recognizance (PR release) if you do not have any prior convictions, with your promise to appear in court on a specified date. King, Pierce, Thurston, Snohomish, and Kitsap counties typically will release you after the booking process. More rural counties like Lewis and Cowlitz will require a judge to make this decision. That means if you got arrested on Friday, you’re spending the weekend in jail.
If you have a prior DUI conviction, more than likely bail will be imposed.
6. The DUI Hearing
This is a separate administrative hearing from your case in a criminal court. The law has changed and you now only have 7 days from the date of arrest to request this hearing. These hearings are very difficult to win for a number of reasons. The only 4 issues the DOL will concern itself with are the following:
- Whether or not the DOL has jurisdiction to revoke your license.
- Whether or not the officer had reasonable grounds to stop your vehicle.
- Whether or not the officer had reasonable grounds to make an arrest.
- Whether or not your decision to take the breath test was voluntarily and intelligently made.
There are a myriad of arguments to be made with regard to each 4 issues and depend on the individual facts of each case.
7. I’m out of jail, now what I do?
Now is the time to decide if you want to hire a private attorney or have a public defender represent you. You must be indigent to qualify for a public defender, which means that your yearly income has to be around $15,000 or less. One thing to bear in mind when deciding to go with a public defender is this: the public defender will not help you out with many things that a private attorney can and should. Representation at the DOL hearing, helping you find a treatment agency to get an alcohol assessment, and helping you get your license back are all things that a private defense attorney can help you with. We have dealt with hundreds of DUI cases and know exactly how to accomplish these goals.
8. What will happen in court?
Again, this will depend on the court, the individual facts of your case, the judge, the prosecutor, etc. But, no matter the court, you can expect the following types of hearings:
This is your initial appearance, where a formal plea will be taken. The court will decide what conditions to impose, and tell you when to come back for a pretrial hearing. Standard DUI conditions are the following:
- Law abiding behavior
- No driving without a license or insurance
- No breath test refusal upon a reasonable request by law enforcement
The judge can also require you to have an ignition interlock device installed on your vehicle, an alcohol monitoring device put on your ankle (called a “SCRAM”) or both. Again, this depends on the individual facts of the case.
The first one is usually continued for additional investigations and negotiations. The purpose of a pretrial hearing is to see if a compromise or plea bargain can be made.
This is a hearing that is typically set one to two weeks before trial. This is when the parties answer “ready” for trial.
Where 6 people will decide whether or not you committed the alleged violation.