Finding yourself stopped on the side of the road facing a law enforcement officer who is conducting a DUI investigation is not where anyone wants to be – especially if you have been drinking and driving.
If you recently found yourself in precisely this situation, and have never been in trouble with the law before, you likely find yourself with a number of questions about your case and about the legal process in general.
Because of the unique nature of a criminal prosecution, it is impossible to provide you with answers to specific questions regarding your case.
For case-specific questions you will need to consult with an experienced Nebraska DUI attorney; however, in an effort to provide some guidance to those facing driving under the influence, or DUI, charges, an Omaha DUI defense lawyer has provided answers to some common questions.
Can a Law enforcement Officer Conduct A Random Stop?
Although it seems as though they do this on a regular basis, a law enforcement officer is not legally allowed to conduct random stops looking for motorists who are drinking and driving. An officer must have a reason to stop you.
That reasons may be something relatively simple, such as a broken taillight; however, there must be a legal reason for the initial stop.
Should I Admit I Have Been Drinking if Stopped?
This is a difficult question to answer. On the one hand, it is never a good idea to lie to a law enforcement officer. On the other hand, if you have been drinking, admitting it won’t help you.
Saying you just had “one drink” gives the officer enough cause to continue the investigation — and they usually assume you had more than one drink anyway. Of course, asserting your right to remain silent is also a sure fire way to end up in a full blown investigation.
When possible, it is a good idea to try and deflect the question by asking the officer why you were stopped, or claiming your attorney advised you to never answer questions without him/her present. It’s a tough line to straddle but worth trying.
Do I Have to Perform the Field Sobriety Tests?
Field sobriety tests are administered by a police officer – the same officer who decides if you passed or failed each test. Needless to say, few motorists ever pass the tests. Even sober the tests can be difficult for the average person to perform under ideal circumstances.
A nervous motorist on the side of the road is unlikely to perform well. The results are not admissible in court; however, the results can be used to form the probable cause needed to arrest you.
Moreover, there is no penalty for refusing to perform the tests. In short, you will likely gain nothing by consenting to perform the FSTs so declining is often in your best interest.
Do I Have To Take The Breath Test?
Again, no; however, unlike the FSTs, there is a penalty for refusing to take the chemical test. Nebraska’s implied consent law says that you agree to submit to a chemical test if you are arrested for DUI and that your driver’s license will be revoked if you refuse.
Therefore, you can refuse; however, you must weigh the consequences of refusing against the likely results of the test if you take it and decide which is in your best interest.
Do I Even Have A Defense If The Breath Test Results Were Over 0.08?
Contrary to what the police and the prosecutor would like you to believe, blowing a 0.08 percent or higher on a breath test does not ensure a conviction.
There are several ways in which an experienced Omaha DUI attorney might be able to attack the results of a breath test, including, but not limited to, the following:
- Operator error,
- Machine was not properly calibrated,
- Mandatory waiting period not observed,
- Medical conditions that skew the results, or
- Rising alcohol defense.
Dos and Don’ts of a DUI Stop
Whether the stop was legal or not, you need to know what you should and should not do once you have been pulled over for what appears to be a DUI stop.
- Do have your license, registration, and proof of insurance ready to hand to the officer.
- Do not exit the vehicle unless the officer tells you to do so. This makes them very nervous and could make matters much worse.
- Do show respect and be polite. You have nothing to gain from acting adversarial.
- Do not question the legality of the stop. Law enforcement officers are not lawyers. Leave that argument for the courtroom if necessary.
- Do keep your hands where the officer can see them – they get jittery if you don’t.
- Do not admit to consuming alcohol. No law enforcement officer believes you only had one drink so admitting that is as good as admitting you are drunk.
- Do not agree to perform the field sobriety tests under most circumstances. Success or failure is completely subjective and determined by the officer. Most people fail solely because they are nervous.
- Do not try to talk yourself out of an arrest – it very rarely works and usually does more harm than good.
- Do not resist arrest. Doing so will only add a charge against you. Let your lawyer handle everything once the officer has decided to make the arrest.
- Do not refuse the chemical breath test – unless you understand the consequences of doing so and are willing to face them. Refusal means an automatic loss of your driving privileges in Nebraska. It does, however, also take away the strongest State’s evidence in most DUI prosecutions; however, it does not ensure a dismissal or not guilty verdict.
- Do pay attention when the breath test is administered. If the test is administered improperly it could cause the results to be inadmissible so try to remember everything that happens during the test, such as how long after you were originally pulled over you took the test, how long you were observed before starting the test, and who administers the test.
Contact Our DUI Defense Lawyers Today
If you have been charged with driving under the influence, or DUI, in Nebraska contact the Petersen Law Office to discuss your case with an experienced Omaha DUI defense attorney.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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