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 attorney 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 a 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
- Rising alcohol defense
If you have been charged with driving under the influence, or DUI, in Nebraska contact the Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced Omaha DUI attorney.