What to do if you are stopped for a DUI?

Matt O’Connor is with The O’Connor Law Firm PC. He has been a licensed attorney for over 20 years. The O’Connor Law Firm has an office here in the City Market in Kansas City, Missouri at 523 Grand Blvd., Suite 1B.    Hi.  Matt O’Connor from The O’Connor Law Firm in Kansas City Missouri here to offer you a few tips on the do’s and don’ts when you’re polled over for a suspected DUI or operating a motor vehicle under the influence of alcohol. First, at the outset let me tell you it’s a lot cheaper to take a cab even if your cab ride is across town and its  bucks because by the time you get done paying for lawyer,  the classes that you have to take, the inconvenience you lose your license for, anywhere from  two  days, or if you don’t blow, a year. The cost a cab starts looking like a pretty good comparison so I concur that everybody do the same thing that I do and that is if you have one drink or two drinks especially, take a cab. Really, if you’re going to have one and plan ahead take a cab there so you don’t have to worry about your car the next day. So, back to the tips.

What do you do if you’re pulled over?

Well, first of all you maintain your cool and have your license and registration handy.  I wouldn’t recommend fishing around in your glove box until the officer tells you to do so.  So let’s start from the beginning. The officer pulls you over. A lot of times they will have you step out of the car and usually that’s for officer safety realize everything you are doing is most likely on videotape so now’s not the time to be funny.   Now is not the time to practice your stand-up comedy routine standing by the side of the road with the officer who wants to give you the field sobriety test. And what you do if you know that you’re over the legal limit? It does not take much to be over the legal limit. Let’s say you’ve had five drinks in a couple hour period of time, you’re likely going to be over the legal limit.

So do you take the field sobriety test at all? Do you take the breath test?

It depends on what county you are in. I can offer too specific of advice but if you are in Platte County here in the Kansas City metropolitan area, or Cass County in the outlying counties you definitely we want to make sure you go ahead take breath test.  If you don’t take a breath test there is a high probability that your license will be revoked for a year. If it is your first time and there is not an accident involved you can keep your license. In Jackson and Clay County but there’s some hoops you have to jump through so it’s not always a guarantee. Again that only applies to people who’ve never had an alcohol contact, which means being arrested for suspected drunk driving or someone if you happen have not been involved in an accident there’s an accident they will not offer you those two diversion type programs in Clay and Jackson County. So let’s say you take the field sobriety test. You want to make sure that you listen to the officer’s instructions very carefully and follow through. If you have any known physical ailments or deformities make sure you state those clearly and inform them of that at the time. If you have an astigmatism or other disorders of the eye that will affect the horizontal gaze nystagmus that is where they hold the pen or the finger generally   Twelve-fifteen inches from your nose and you track it.  What they’re looking there is what’s called a lack of smooth pursuit. The theory is that medically if you are intoxicated your eyes will tick, tick, tick, back with the horizontal gaze nystagmus test. If the officers did that in the proper way. Again, it’s got to be 12-15 inches from your nose to be accurate. There’s a lot of the little details that have to be accurate in order for the field sobriety test to hold up in court. But generally it is extremely difficult to give those results up for now because a lot of it is based on officer observation. So get the heel to turn he’s got the horizontal gaze nystagmus there is no ABC test. I have seen some officers who give that but it is not on standardized tests so it is little bit odd if you ever get that. There’s the walk and turn test as well. And again remember you’re on video so it’s not time to be funny. Concentrate on trying to perform test as well as you can. When you get to the police station now they may give you a portable breath test at the scene which you do not have to take again but again that’s a decision you should make after contacting a lawyer.  But let’s say you’ve not taken a portable breath test in you’re at police station and they’re firing up the data master, which is the machine which will read your blood alcohol content.

You Have 20 minutes to call a Lawyer!

You have twenty minutes to contact the lawyer and generally people don’t get pulled over for DUI between 9-5. So, is extremely difficult to reach a lawyer.  Especially if you don’t have one’s cell phone number handy. So during that period of time you should use that time to try to reach a lawyer. You’re considering in trying to reach a lawyer also used start back factoring in how many drinks you had and then whether or no stalling can stall the task but if you have the minutes try to reach a lawyer. You can try to do this in your head your own retrograde analysis and that is: was I drinking a lot more toward the end so the longer I wait the higher my blood alcohol content is going to be or is a situation that if you take the test immediately, is it going to be better? All those things should be running through your head at this point as well as why in the world that I get behind the wheel when I was intoxicated? So let’s say you blow over the legal limit what’s going to happen then?  Well they’re going give you a temporary driving privilege.  You have about 30 days from the time you see that in order to request your administrative hearing.  What’s an administrative hearing? That’s when you and/or your lawyer can go through the police reports, and any information received from the packet that’s received for from the police department or the highway patrol it goes to the department of revenue. That’s a point where your lawyer would make any notes as to things that were defective in the field sobriety test. Making sure that the machine that was used for the breath test was calibrated. All those things, very technical, very specific type issues. You have a right to a hearing. How the hearing works is you can you do it in person or you can do it over the telephone.  Again that’s a decision you should make after consulting with your lawyer. But make sure you request that hearing. If you don’t within that time period you can request it late. There are some advantages to request the hearing even though the chance of success on the administrative hearing is very, very slow very slight. I would say in as a rough guesstimate. Most of the stops and determinations are upheld by the Department of Revenue. You can appeal it later in there some options there as well. But at the beginning stage you want to request a hearing here’s why: You can then sort of budget your time ahead that you’re going to be without your license because that’s the odds-on what’s going to happen. In Missouri we have what’s called the hard. So, once you have the hearing for your driver’s license whether it should be suspended or not. Your license will be suspended for 90 days. The first thirty of which you cannot drive at all and it is a crime to drive during that 30 days. To driving while suspended it’s going to get you in more trouble so really can’t drive during that period of time. After that thirty days you can then have what’s called ‘a limited driving programs’ for another 60 days. So the total is ninety. In the last of it you can drive to and from work, doctor’s appointment, things of that nature, as long as delineated in the temporary or your driving privilege that last days. So what’s likely to happen in court? Well, any trained monkey lawyer can likely get you what’s called a ‘suspended imposition of sentence’ and they’re going tell you, “don’t worry about it. It’s not going to show up on the record.” Well, the arrest is always going to show up on the record. It’s nearly impossible to get those expunged in Missouri. There are some procedures but it is very unlikely. So the plea to a DUI, while not a conviction, if you get the suspended imposition of sentence, you’ll be on probation for two years. You’ll have to probably do some community service. You have to go to the Mothers Against Drunk Drivers Victim Impact Panel and you’ll have to complete program called say top which is a substance abuse traffic offenders program. It’s quite pricey. It’s two phases: There’s initial phase where the evaluation and they determine what treatment should be implemented for you. Most time it’s just another class and things of that nature unless your blood alcohol level was really high and there are some extenuating circumstances that they believe warrant a more serious treatment alternative up to and including in inpatient treatment. That is often not used. So, I wouldn’t sweat that one at the outset. So, you go to court, your lawyer works out a resolution with the prosecutor. You’re on probation, most likely. You’re going to have to pay some fines. And the way that works is if you notice when you get a DUI you’re going to get two tickets. You’re going to get the ticket for operating a motor vehicle while under the influence of alcohol and another ticket for failure to maintain lane or speeding whatever the initial reason was that the officer pulled you over. Why they do that is because they stick you with a higher fine on what they call the companion ticket; the speeding, the failure to maintain a lane, things of that nature. That way they can assess a fine it generates revenue for the court whereas on the suspended imposition sentence on probation for the DUI they don’t get anything for that except the court costs and that’s why there’s two tickets if you’ve ever wondered. One thing I want to also talk about as everybody has this misconception there’s a big difference between DWI, DUI etcetera, etcetera. Well, actually neither are correct. If you look at the statues in Missouri and you can go to their website for the Department of Revenue Driver’s License Bureau they have them all listed out there: it’s operating a motor vehicle that renders you incapable of safely doing so is kind of paraphrasing what the statute says it has nothing about DUI or DWI so don’t bother with that debate because really neither matters its operating a motor vehicle in an impaired condition is the key language there. So, I hope this answered all of your questions. One thing I do want to point out before I conclude this though, is if you refuse to take the test then you go to court but you have to file that petition within the court within 30 days. So make sure that if you refused to take the breath test that you have retained a lawyer or yourself have petitioned the court to review that refusal. Because if you don’t you lose your license for one year and again it’s not just part of the year it’s the entire year and if you drive while that license is suspended its another crime called ‘ driving while suspended’. So or driving while revoked you want to make sure that you are not driving under these circumstances and you also want to make sure that you get your hearing request in a timely manner. So, again reminding you the best advice I can give is: take a cab, have a designated driver, and save yourself a lot of expense and risking others on the highway that’s the best way to do it. I would prefer not to have any DUI clients, it would be nice but in reality, I guess, that’s just not the way the world works. This has been Matt O’Connor from the O’Connor Law Firm with tips on what to do when you are pulled over for DUI and the implications thereof.    

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