With the Holiday Season upon us, it's not unusual to be invited to a
Thanksgiving family dinner, Christmas party or New Year's Eve office
get-together where alcohol will be present, and often even promoted. While I
would never advocate driving or riding under the influence of alcohol or
drugs, it's a situation most of us have found ourselves in at one time or
another. My best advice is to "Just Say NO," or at least drink responsibly
-- eat plenty of food to help absorb the alcohol, or pace yourself and avoid
letting the alcohol build up in your system.
It's a common misconception that it's against the law to drink and drive,
but it's actually only illegal if your blood alcohol level (BAC) is above
legal limits (DWI - Driving While Intoxicated, or OVI – Operating a Vehicle
under the Influence), or if the alcohol in your system interferes with your
ability to operate a motor vehicle (DUI - Driving Under the Influence).
Having a couple of beers or drinking some wine with dinner, and then driving
home, is legal unless you have one too many.
So, what do you do if you find yourself at a party, feeling tipsy, with no
place to go but home and no way to get there except your car or motorcycle?
Again, my best advice is to wait, eat, call a cab, ride home with a friend,
or otherwise stay out from behind the wheel of your car or off your bike.
But reality is much different, and reality is often blurred by that point.
If you feel that you must operate a motor vehicle, the best way to avoid a
DUI or DWI conviction and all the nastiness that comes with it is to avoid
being a target for the police. Determine a route home that is not a main
thoroughfare or through a known bar area, where police are likely to be
watching for drunk drivers. Check your timing, and don't leave at
"beer-thirty", just before or after closing time. Before you go out on the
town, make sure your car or bike is in perfect working condition; no lights
out, no broken tail lights, nothing to draw attention to your vehicle. Know
where your license is, as well as your registration and proof of insurance,
so that if you're pulled over you won’t have to fumble around for anything.
Mind all traffic signals; red means stop, green means go. Be aware of your
driving and avoid making any sudden movements across lanes, swerving,
over-correcting, or going too wide around turns...all tale-tell signs of
someone who shouldn't be on the road. Double-check to make sure your lights
are on! Signal all your turns. Watch your speed. It's also best to stay in
the slow lane. Don't give the police a reason to stop you!
It would also be advisable to roll down your rear windows a crack and turn
up the fans in your vehicle to move the air around and remove that party
atmosphere. Chew some gum, take a breath mint, gargle with some mouthwash,
or even smoke a cigar or cigarette to eliminate the smell of alcohol on your
breath. The number one reason police give for arresting someone for drunk
driving is the smell of alcohol in the car or on your breath. A couple of
drops of Visine would also help to "Get the Red Out."
If you do see flashing lights in your rear-view mirror, don't panic and by
all means do not try to outrun the police or crash a road block! Signal and
pull over smoothly to the side of the road. Stay in your car or on your
bike, and keep your hands in plain sight. Be polite at all times, but be
sure to assert your rights. If nothing else, it will give your attorney
something to work with.
"Where are you coming from?", will probably be the first question you hear.
Think twice before volunteering that you just left the local bar. Working
late or having dinner with a friend sounds much less incriminating. If you
are stopped while pulling out from a bar, you might consider telling the
officer that you were waiting for a friend who didn't show up, or the prices
were too high, or it was too crowded and you decided to go home.
The officer will invariably ask you if you've had anything to drink. It
might be best to answer "no, sir" than to admit to it and then face the
litany of follow-up questions: “How much, where at, how long ago?”
At this point it would be advisable to ask the officer if you are under
arrest or free to go. If he or she says that you are under arrest or being
detained, your conversation should end with the statement that you want your
attorney.
Police officers are trained to get you to admit guilt, and can be very
tricky in getting a confession out of you. Therefore you should tell them
that under advice from your lawyer you wish to make no further statements.
* Do not speak with or be interviewed by the police.
* Do not submit to any roadside sobriety tests, as they are subjective and
not required
by law (not to be confused with a Breathalyzer test: see
below).
* Do not consent to any searches.
* Do not waive any of your rights.
* Do not resist, and be polite at all times.
* Do request to leave the scene.
* Do request to contact a lawyer.
Should you consent to a Breathalyzer or blood test? While the answer
to this may vary depending upon you and your legal situation, you need to
know that the law in Ohio changed recently and it is now a separate crime
for you to refuse to take a chemical sobriety test if you are placed under
arrest for operating a vehicle while intoxicated and you have a prior
conviction within the past six years, or two convictions within the past 20
years. It’s no longer just a matter of automatically losing your license if
you refuse to take the test, as the new law subjects repeat offenders who
refuse to take a blood, breath or urine test to the same penalties as if
they had tested a blood alcohol content (BAC) level of .17 or above, and
constitutes an additional criminal act with penalties ranging up to a year
in jail.
As evidence of the
legislature’s zeal for reducing drunk driving, the law also now allows the
prosecution of an attorney who advises a client to not take a chemical
sobriety test for complicity or obstruction of official business and may
charge them as a codefendant in the case.
On June 24, 2004,
Ohio Governor Bob Taft signed
House Bill
163 into law, which also increases the penalties
and jail time for repeat offenders who drive while intoxicated. This new law
took effect on September 22, 2004, and not only increases the mandatory
penalties for persons with prior convictions, but also extends the look-back
period from six years to twenty years – meaning that the courts can now look
into your past criminal history for up to twenty years to check for prior
DUI convictions.
The new law calls for
keeping DUI offenders off the roads for longer periods by adding a mandatory
one-to-five-year prison term for persons convicted of five or more prior DUI
offenses in the past twenty years, whereas previously mandatory sentencing
for repeat offenders could not exceed 120 days.
If you are charged with a
drunken driving offense, it is important that you contact an attorney
immediately. Don't wait until the day before you are to appear in court!
This is a serious offense that may cost you jail time, loss of license,
fines and a dramatic increase or cancellation of your insurance.
Alcohol-related crashes
result in more than 300 deaths and more than 14,000 injuries each year in
Ohio, according
to the Ohio State Highway Patrol, and there are
more than 300,000 repeat drunk driving offenders in
Ohio;
28,000 of which have five or more drunk driving convictions.
Before
you have your next drink, ask yourself if it’s really worth it.
The above is not intended as legal advice, and is certainly not advocating
driving drunk. However, in my legal practice I have successfully
defended many clients who were not “drunk drivers,” and were no threat to
themselves or others on the road.
Have a
safe and happy Holiday Season, and call me if you have any legal questions:
(800) 582-5577
