By Shawn Overbey, Attorney, Heath, Overbey, Verser & Old, PLC
Imagine. You’re having a few drinks with friends. Using very poor judgment, you decide to drive yourself home at the end of the evening. On your way home, the blue lights flash in the mirror. The officer comes to the window and says that you did not come to a full and complete stop at the last stop sign. He asks you to step out of the car, with a flashlight shining on you. He next asks, “Have you been drinking?”
Know this: No matter your answer, you will be detained and you will be asked to perform field sobriety tests.
Side of the road tests
These tests are to provide the police officer with clues as to whether you are driving under the influence. You are not required by law to perform these tests. Your performance will be used in court against you. These tests generally include reciting the alphabet from one letter to another without singing the alphabet (E–S); doing a number count backwards (61–46); and touching the tip of your thumb to your finger tips and counting 1 to 4, then backwards 4 to 1 three times. You may be asked to stand on one foot and count from 1,001 to 1,030.
Usually after you have finished these tests, the officer will offer you a device to blow into at the scene. This device is the Preliminary Breath Test, or PBT. This device is designed to measure your breath alcohol content at the scene. Again, you are not required by law to submit to this test.
Even sober, your anxiety will likely affect your performance of these tests. Therefore, my advice (if you have been drinking) is always to politely decline to do side of the road tests. When the officer first pulled you over, he already suspected drunk driving. Once he smelled alcohol or saw blood-shot eyes, he is going to arrest you regardless. Your doing side-of-the-road tests is simply helping him to build his case for court.
Once you are at the station
At this point you have been placed under arrest. Now, once back at the station (and under arrest), the law requires you to submit to a blood or breath test. If you refuse, you can be additionally charged with refusal which carries a one-year revocation of your license. Remember: You can freely decline to the side-of-the-road tests; refusing the intoxilyzer at the station carries stiff consequences. You do not have the right to choose between blood or breath.
If you have a breath or blood alcohol concentration (BAC) of .08 or greater, there is a presumption that you are operating a motor vehicle under the influence. However, the presumption is rebuttable.
A first-time DUI offense typically carries the following penalties:
1. A potential (but rarely imposed) jail sentence, with mandatory jail time if your BAC is in excess of .15;
2. A potential fine of $2,500, with a minimum fine of $250;
3. A restricted license;
4. A requirement to complete the Virginia Alcohol Safety Action Program to receive full restoration of your driving privileges;
5. Imposition of an ignition interlock device on your vehicle and payment of the monthly service fees associated with the device.
So, if you are pulled over, and have been drinking, stay calm, be polite and know your rights. But, wouldn’t it have been much easier to take an Uber home instead?
Shawn Overbey is a partner with the law firm of Heath, Overbey, Verser & Old, PLC. He has been representing clients
in traffic and criminal matters for more than 20 years. He can be reached at firstname.lastname@example.org or 757-269-9855.
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