Most people know it is not illegal to drink and drive in Washington State. They also know it is illegal to drive with a breath or blood alcohol level of .08 or higher. What most people do not know is that they can be charged and convicted of DUI, even if a test of their breath or blood shows they are UNDER .08. The critical issue is whether their driving is affected “to an appreciable degree” by the consumption of alcohol.

Obviously, the best way to avoid a DUI is to avoid drinking and driving. However, if you find yourself in the unfortunate circumstance of being stopped by the police after you have had something to drink, following are some essential DO’s and DON’Ts, even if you believe you are not under the influence:

1. DO stop talking.

You have a right to remain silent – USE IT! It is human nature to try to talk your way out of a problem. You may want to defend yourself. Maybe you think if the officer understands your circumstances, he’ll be nice and let you go. Having represented hundreds of people accused of DUI and other crimes, I can tell you with absolute certainty that NO case got better when my clients talked. ANYTHING you say, including honest and truthful statements, CAN AND WILL be used against you, so it is IMPERATIVE that you DON’T say ANYTHING, even if you think you are innocent.

2. DO ask to speak with a lawyer.

You have a right to an attorney – EXERCISE IT! At the earliest opportunity, politely tell the officer that you wish to speak with an attorney and that you will not answer any questions until you do. The officer is REQUIRED to give you access to an attorney. If you do not know your attorney’s phone number, there are public defenders on call at all hours to assist you. When the officer does put you in touch with an attorney, REQUEST PRIVACY. Your right to a lawyer is violated if you are not able to speak with him or her in private.

3. DON’T take ANY Field Sobriety Tests (FSTs).

Politely decline roadside tests, including a portable breath test (“pbt”). Officers often ask people whether they would be willing to perform some voluntary tests to see if they are O.K. to drive. This is a LIE! The officer is not interested in whether you can drive. He or she already thinks you are impaired, otherwise he or she would not be asking you to perform these tests. These ARE VOLUNTARY and are just another tool officers use to build their DUI case against you. I have NEVER read a police report where the officer let the suspect drive off based on their performance of these VOLUNTARY tests.

4. DO NOT answer any additional questions.

Politely decline to answer additional questions, in the field and at the police station. The officer may ask you how much you have had to drink. He or she may ask you to recite the alphabet, count backwards, or estimate the time of day or night, or any number of other questions. DON’T ANSWER ANY OF THESE QUESTIONS. Remember, these questions are designed to build a DUI case against you. Continue to politely exercise your right to remain silent.

5. DO take the breath test at the station.

Take the breath test on the machine at the police station. You may be reluctant to do this because you are afraid you may be over .08. THIS IS THE ONLY “TEST” YOU SHOULD TAKE. If you refuse to take this breath test, you could automatically lose your license for a year OR LONGER. A well-qualified DUI attorney can challenge the accuracy of the breath test result in court. If you refuse this test, you are depriving your attorney of the opportunity to challenge it.

6. DO ask for an INDEPENDENT test.

Ask the officer for an independent test of your blood alcohol concentration. You have the right to an independent test of your blood-alcohol concentration. Ask the officer to take you to the hospital for a blood draw. If he or she declines your request, go to the hospital yourself and have your blood drawn. Generally, blood tests are more accurate than breath tests. If the results show you are actually below .08, your lawyer can use this to your advantage.

7. Conclusion.

If you find yourself in the unfortunate position of being stopped by the police after drinking, remembering these DO’s and DON’Ts will put you in the best position to challenge a DUI charge, and will help your lawyer mount your best defense.


1©Joel P. Nichols, Deno Millikan Law Firm, PLLC