You get pulled over and the cop asks you: “Have you been drinking?” If you have been drinking, what should you say? Whether true or not, it is often reported that most people will answer, yes, but only one or two drinks. Well, the officer isn’t going to think, “okay, that’s not so much, I’ll let it pass.” That answer is going to be used by the officer to establish the officer’s suspicion that you are driving under the influence. From that point forward, the officer will probably ask you to exit the vehicle and submit to a Field Sobriety Test (FST). The officer’s goal is to establish probable cause to arrest you for driving under the influence.

It’s a bad idea to admit to any consumption of alcohol to the officer’s question, but you shouldn’t lie – that could get you in more hot water later on. What you should do is tell the officer that you respectfully decline to answer the question. Now, you may think this will cause the officer to suspect that you have indeed been drinking. And that may be true. But it is your legal right to decline to answer the question, as it is also your legal right to decline the FSTs, as you should—FSTs, including roadside breathalyzer tests, are voluntary. The officer’s questions and any FST are designed to establish probable cause to arrest you for driving under the influence.

If you don’t answer the officer’s questions or submit to FSTs, you can still be arrested for driving under the influence if the officer believes you are under the influence, but there will be less evidence supporting the arrest. It is important to know that once you are arrested, you cannot refuse a chemical test (blood or breath) without facing serious penalties. But depending on the result of that test, the prior observations of the officer may mean the difference between a DUI conviction and a dismissal of the charge or a conviction on a lesser charge.


John Doesn’-t Give the Officer Enough Evidence and His DUI Charge is Dismissed

John is pulled over because he made a “California roll” through a stop sign. Upon contact with John, the officer detects a slight scent of alcohol on John’s breath. In fact, John did have a few beers at the barbeque he just attended. The officer asks John if he had been drinking. John tells the officer that he respectfully declines to answer the question. John also refuses the officer’s request to submit to FSTs. The officer observes that John’s speech seems a bit slurred and coupled with the scent of alcohol on his breath, arrests John for DUI. At the police station, John submits to the mandatory breath test where he blows a .08%.

John’s DUI defense attorney has a few defense options.

His attorney might argue that the John’s .08% BAC, being right on the cusp of the per se limit is subject to a margin of error. Because the officer relied only on the scent of alcohol on John’s breath and the officer’s subjective observation of slightly slurred speech, the evidence is questionable as to whether John was over the per se limit.

Alternatively, his attorney might invoke a “rising blood alcohol” defense. This defense is based on the fact that blood alcohol concentration (BAC) rises until the alcohol is processed by the liver. Thus, John’s attorney might argue that John’s alcohol level was rising in the time between the traffic stop and the chemical breath test taken at the police station after his arrest.  Note that if John had submitted to a roadside breath test, this defense would be harder to make.

Because the prosecution has limited evidence, John’s DUI defense attorney is able convince the district attorney to dismiss the charge.

Susan Submits to all the Officer’s Requests and Ends Up with a Wet Reckless Conviction

Same fact as above except Susan tells the officer she only had a couple of beers thinking the officer will appreciate her honesty and cooperation. However, this only gives the officer a reason to ask Susan to step out of the car and perform the standard FSTs. She has never been very good at balancing and stumbles a bit when she is asked to walk a straight line.  Susan also submits to a roadside breathalyzer where she blows .08%, the same result that shows up at the chemical testing done a bit later at the police station.  Now the officer has substantially more supporting evidence when compared to the evidence against John:  Susan admitted to drinking, she stumbled on the FST, and she had an .08% BAC soon after she was stopped.

Unfortunately for Susan, her DUI defense attorney has a harder time defending her. He doesn’t have the negotiating power he had in John’s case. The best he can do is negotiate a wet reckless for Susan and that is only because the officer did not observe Susan driving in a particularly dangerous manner (other than rolling through a stop sign) and her BAC was right at the DUI threshold.

You can see how the two approaches to a DUI stop can make a huge difference in the outcome.  While you should never lie to the officer, you don’t have to answer the questions or submit to FSTs. The officer knows you have this right but be polite and deferential in your refusals. You must submit to the chemical test once you have been arrested, but you are not required to do so until you are placed under arrest.

It is the goal of Orange County DUI defense attorney William Weinberg to obtain the best outcome for his clients. He offers a free consultation to explore your DUI defense options. You may contact him by calling his Irvine office at 949-474-8008 or by emailing him at

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