Written by Valerie Moss Andrews
*Note: Obviously the first bit of advice is DON’T DRINK AND DRIVE. But if you do find yourself pulled over after you have been drinking, below you will find some advice.
Whenever I am asked a legal question, I inevitably answer: it depends. And that is the answer when people ask me what they should do if they have been pulled over after they have been drinking. Your particular circumstances can help guide you through this process.
First scenario involves nonadjudication. Nonadjudication means that the court withholds finding you guilty of the offense and sentencing you, and instead places you in a nonadjudication program conditioned upon successful completion of a number of requirements imposed by the court. Upon successful completion of all the requirements and payment of fines, the court will then enter an Order of Nonadjudication and the DUI will not be on your record. However, it’s important to have an attorney to make sure all the proper paperwork is completed. See Miss. Code Ann. 63-13-30(14). A person is only eligible for nonadjudication if it is their first DUI and they do not have a commercial driver’s license (CDL) or commercial learning permit at the time of the offense.
If you don’t have a CDL and have never been convicted of a DUI before, and you want to get your first DUI nonadjudicated, you should do the following:
Simply pull over, remain calm with your hands on the steering wheel and when the officer asks, retrieve your license and insurance.
Be honest and polite and submit to the breathalyzer if he/she asks. However, politely refuse to submit to field sobriety tests because you have no legal obligation to submit to these. If you blow over .08%, you will be taken into custody. Eventually, you will be able to bond out depending on when and where you got arrested.
Submitting to the breathalyzer is ONLY recommended if it your first DUI and you intend to pursue a nonadjudication.
Upon your release, contact an attorney who can help facilitate a DUI nonadjudication.
Second scenario is if you intend on taking your DUI case to trial. If it is your second or subsequent DUI, you don’t have the option of nonadjudication so this path is recommended.
Simply pull over, remain calm with your hands on the steering wheel and when the officer asks, retrieve your license and insurance.
If the officer thinks you have been drinking, he/she will ask you if you have been drinking and/or how much you’ve had to drink. If the answer will likely incriminate you, then decline to answer. You have a right to politely decline to answer. However, if you do decide to talk, be honest.
Politely refuse to submit to Field Sobriety Tests. You have no legal obligation to submit to these and they are extremely subjective and unreliable.
The officer will likely insist you provide a voluntary breath sample to help him determine if you are under the influence. This is what’s called a ‘roadside breath test’ because officers use a handheld breathalyzer or Preliminary Alcohol Screening test. Again, politely refuse to do so because these tests are unreliable.
At this point, the officer will likely take you to the police station since you are refusing to cooperate. However, don’t panic! You are simply asserting your legal rights and don’t let the officer force you to submit to any testing.
Once at the station, officers will ask you to submit to yet another chemical breath test with a bigger machine more reliable than the roadside breathalyzer. Under Miss. Code Annotated § 63-11-5 (the ‘implied consent law’), any person who operates a motor vehicle in MS shall be deemed to have given consent to chemical tests of his/her breath to determine blood alcohol concentration. However, you can refuse to submit, but because of the Implied Consent Law, your license will be suspended for at least 90 days:
Under Miss. Code Annotated §63-11-21 & §63-11-23, if you refuse to submit to a chemical test, then the officer will demand your driver’s license and they can suspend the license for up to ninety (90) days (if no previous DUI convictions) and up to one (1) year (if you have previously been convicted of a DUI or had a previous DUI nonadjudicated). The notice of suspension will be sent to you in writing and the suspension will begin thirty (30) days after receiving the notice.
Although this suspension may seem harsh, it’s a lot less punitive than a DUI conviction. Further, once you hire an attorney, you can petition the court to review your refusal and potentially get the refusal charge dismissed.
Officers may ask you to submit to a blood test. Again, politely refuse to do so. Police cannot make you submit to a blood test without a warrant, and there are no consequences for refusing a blood test.
If officers are somehow able to obtain a warrant for your blood or breath, you must comply with the warrant.
Finally, once you’ve been released, jot down notes from the entire night so that you can remember every detail for your attorney. And most importantly, contact an attorney ASAP. You will need an attorney to adequately advise you of your choices going forward and fight for your rights.
In conclusion, if you are arrested for a DUI and you intend to pursue nonadjudication, complying with the breath test and remaining polite to the officer will help you in that process. But if you intend to take your DUI case to trial, your chances of success at trial are significantly higher without evidence stemming from your conversations with officers, field sobriety tests, the preliminary breath test, and the chemical breath test back at the station. The less you give the officers, the less they have to work with. But remember to ALWAYS BE POLITE. Being rude to an officer will only hurt your case.
* Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Learn more about Valerie Moss Andrews and her areas of practice here.