Frequently Asked Questions about Drinking & Driving

Recently I have spoken to a number of groups about drunk driving or operating while intoxicated. But that’s a 45 minute talk. So, I was asked to make this video specifically addressing THE MOST common question I get about drunk driving.

# Most frequent question I’m asked:

What should I do if I’ve had a couple of drinks, dinner out with my spouse or with friends, and I come upon an OWI checkpoint? I felt fine when we left the restaurant. But now that I’m being pulled over, I’m scared.

Specifically, how do I avoid a conviction after being pulled over. It really comes down to three things.

You can call it the 3 secrets to avoiding a drunk driving conviction, and numbers 2 and 3 are actually given to every driver by the police themselves.

# (1) be polite to the police officer, (2) remember you have the right to tell the officer you don’t want to answer any questions OR take any field sobriety tests without a lawyer, and (3) remember you have the right to refuse the breath test.

My name is Kirk Piccione, I have been a criminal defense attorney in Louisiana for over 30 years. I am one of only a handful of lawyers certified in the past by the Louisiana Supreme Court to handle death penalty cases. But in addition to major felonies, I also handle every other type of criminal case, right down to misdemeanors and including drunk driving cases, which is what we here to talk about today.

Let’s examine those three points on how to avoid a drunk driving conviction in a little more detail.

(1), be polite to the police. And don’t lie. You don’t need to lie. I’ve been practicing criminal defense law for over 30 years. I have cross-examined hundreds of police officers in trials and hearings. I pick apart and criticize the work that they do. We are adversaries. But when I see them in public we always talk and it’s very pleasant. That’s because I’m polite to them, and even when I’m cross examining them I treat them with the respect that they deserve.

They’re mostly just regular folks doing a job. And although I am telling you to refuse to answer their questions, that doesn’t mean you have to be rude. If you are polite to them, chances are they will return politeness to you.

For example, the officer will ask you whether you’ve been drinking tonight. And we all know he’s not talking about Diet Coke. But you don’t have to lie or be rude. You just say “officer, thank you for your service, but I really don’t want to answer any questions without a lawyer.”

So that’s number (1). Be polite to the police.

Which leads us to #2: (2) remember you have the right to tell the police officer you don’t want to answer any questions OR take any field sobriety tests without a lawyer.

Notice I said answer questions OR take any tests. That’s because the police officer will ask you some questions about whether you’ve been breaking the law, like, “have you been drinking tonight,” AND he will ask you to perform some field sobriety tests. If you tell him “I want a lawyer first,” he will stop questioning you and he will not make you perform the field sobriety tests.

# Here’s something important to think about.

From the moment you’re stopped by the police, everything you do and say is being recorded. The officer’s vehicle has a dashboard camera. The officer is miked up, and he probably has a body cam, and your conversation is being recorded. The backseat of the officer’s vehicle has a camera and a microphone, and everything you do and say is being recorded. Once you get to the police station, there are cameras and microphones in the room where the breath test is offered, and everything you do and say is being recorded.

Why do the police go to such great lengths to record everything that you do and say? Because they intend to use it against you in court to prove that you were driving drunk. So, the more you say, the more answers you give, the more you participate, the more evidence you are giving them to convict you.

And the police TELL PEOPLE all of this. They TELL PEOPLE that they are going to use their words against them in court.

# It’s all in the Miranda rights that officers read to every person they suspect has committed a crime.

MIRANDA: “(1) You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. (2) You have the right to speak to an attorney before making any statement, and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided for you. You can exercise these rights at any time during the questioning. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

You can stop the questioning at any time by (1) refusing to answer further OR (2) by requesting a lawyer.

# Now I’m gonna get a little esoteric on you here with some constitutional law. But just briefly.

These are two of your most important constitutional rights. The first is based on your Fifth Amendment right to remain silent. The second is based on your sixth amendment right to a lawyer. Both of these can be used to cut off interrogation by the police. But the sixth amendment right to a lawyer is more powerful. Why is that?

Because (according to the SCOTUS) when you assert your Fifth Amendment right to remain silent, you are saying “I have decided I don’t want to talk to the police.” It’s you who made that decision. So, the police can continue talking with you, and they can try to persuade you to change your mind.

But when you assert your sixth amendment right to a lawyer, you are saying “I don’t feel competent dealing directly with the police. I feel like I need the advice of a lawyer.” Once you’ve said that, the police can’t try to persuade you to change your mind. All further interrogation must be immediately terminated. If they did try to persuade you to change your mind, the police would necessarily be continuing to deal with you. And this is something you have now said you need a lawyer to be able to do.

So, you can tell the police you simply don’t want to answer any further questions. But it’s more effective to lawyer up, and tell the police you want a lawyer.

# Notice earlier I recommended that you tell the police officer you do not wish to answer questions or take any field sobriety tests without a lawyer. What are these field sobriety test?

In Louisiana, they generally use three.

One test is called the one leg stand test. You have to stand on one leg, holding the other off the ground 6 inches, and count to 30. If you put your leg down to get your balance, they consider that a sign of intoxication.

Another is called the walk and turn test. You walk nine steps heel to toe on a straight line, turn in a specific manner as instructed by the officer, and walk back nine more steps on the same line. If you step off the line, don’t touch heel to toe, count wrong, or turn slightly different than as instructed, they consider those signs of intoxication.

# The most important test is the horizontal gaze nystagmus test. This is the test where you stand still and follow the officer’s pen with only your eyes as he moves it back and forth in front of your face. Many people don’t even recognize this as a sobriety test, because they are standing still. So, it does not feel like a test of dexterity or balance. But it is the most effective for the police because it gives them neurological evidence that your central nervous system is under the influence.

All three of these are field sobriety tests. Many people don’t realize they can refuse these tests. But these tests are a form of interrogation. They are no less interrogation than the officer’s questions about whether you have been drinking. And just like you can refuse to answer that question, you can likewise refuse to participate in the field sobriety tests.

If you are being given these tests, it’s because a LEO thinks you are intoxicated. So, chances are high, you are NOT going home. It’s a mistake to think you can perform your way out of an arrest. Like I said, the officer is giving you the tests because he has already formed the opinion that you are legally intoxicated. At THIS POINT, all you can do is protect yourself from a conviction.

So that’s number (2) remember you have the right to tell the police officer that you do not wish to answer any questions OR take any field sobriety tests without a lawyer present.

Third, (3) remember you have the right to refuse the breath test.

Many people are under the mistaken impression that they are required by law to take the breath test. People think this even after they hear the police officer tell them they don’t have to take the breath test. There are exceptions, like when there is a crash and a fatality or serious injury is involved.

But again, the police give people on a silver platter everything they need to defend themselves. They read your rights from a form, and give you a copy.

# This is from the LA DEPT of PUBLIC SAFETY and CORRECTIONS official notice which is read by every police officer to every suspect in every drunk driving case, and they give you a copy.

Image of LaDPSC form – hold in front of camera

“You have the right to refuse the chemical test if you are not involved in a crash where a fatality or serious bodily injury occurred.”

It’s a long form. And the officer reads the whole thing. So, I understand some people don’t hear that. But it’s there. If there was not a crash where someone died or was seriously hurt, you have the right to refuse the chemical test. If it was just a traffic stop for speeding, you have the right to refuse the chemical test. If it was a check point stop, you have the right to refuse the chemical test.

If you take the breath test, and you blow over a 0.08, you have just given the State all the evidence they need to convict you for drunk driving. I don’t care how sober you felt or how well you think you did on the SFST.

If you take the test, and blow over a 0.08, you are likely going to get convicted. You will likely get a suspended jail sentence and be placed on 12-18 months supervised probation. You will have to pay a monthly supervision fee. You will pay a fine of $700-1000 plus all costs of court. You will do community service for as little as 4 or maybe as much as 15 weekends. You will attend driver improvement classes. And you will attend substance abuse awareness classes. And you may also be subject to random drug and alcohol testing. Not to mention what it will do to your insurance rates and your ability to obtain employment with that on your record. Every case is different, but these are typical of the sentences you will see in drunk driving convictions.

So those are the consequences.

Are there consequences to refusal? Yes. First of all, if you take the test, and blow just over the legal limit, your Louisiana license will be suspended for 90 days for a first offense. That’s in addition to the conviction you will get for drunk driving in criminal court. If you refuse the test, your Louisiana license will be suspended for 1 year for a first refusal, and 2 years for a second. That’s regardless of whether you get convicted later in criminal court. The suspension is strictly a penalty for refusing the breath test, not for driving drunk.

But suspension is not the end of the world. If you work or go to school, you can get a hardship license that allows you to drive to and from work and school during the suspension.

But in my opinion, for the typical first offender, the consequences of refusing to take the breath test are less onerous than the consequences of getting convicted for drunk driving.

And reflecting on that reminds me that there was a time when there was not nearly as much public awareness about drunk driving. And when people were caught driving drunk, the police and the courts often looked the other way. And that was not good. Clearly, the pendulum has swung in the opposite direction.

Now, the police will arrest anyone who admits to even a taste of alcohol before driving. No discretion whatsoever.

And unfortunately, many people are complaining that the courts have bowed to public pressure, and are no longer requiring evidence beyond a reasonable doubt to convict of drunk driving. In many cases, people are saying that the courts are convicting for drunk driving on mere suspicion.

Justice Tate of the Louisiana Supreme Court once stated in an opinion about a drunk driving case, “when the day arrives when a person may be convicted on the basis of suspicion alone, Liberty will have vanished from the land.”

Many say that the pendulum has swung too far.

So I understand that there is concern about innocent people getting caught up in the wave of intolerance against drunk driving.

So, if you’ve had that one glass of wine with dinner, and you find yourself pulled over on the side of the road, here’s how to improve your odds of avoiding a conviction.

Will doing these things prevent you from getting arrested? No. Absolutely not. If the police officer thinks that you have been drinking and driving, he is going to arrest you. He’s not going to put you back behind the wheel and let you drive off. However, this does give you a fighting chance to avoid a conviction, later, in criminal court.

Note that I have only been licensed in Louisiana and Texas, and some of the advice given above is particular to Louisiana only. Before following this advice, you should consult a lawyer in your own state.

So, (1) be polite to the police officer, (2) remember you have the right to tell the officer you don’t want to answer any questions OR take any field sobriety tests without a lawyer, and (3) remember you have the right to refuse the breath test.

# Then call me, and I will defend you. I’m Kirk Piccione. You can find me and all my contact information at kirkpiccione.com.

And of course, the easiest thing is, don’t drink and drive in the first place.

17 minutes