Ask a Cop – September 2009


Dear Cop,

A friend of mine was recently given a DUI while driving home from the bar. The circumstances seem a little sketchy, though. He was pulled over and passed two field sobriety tests, but the cops still insisted that he had to take a breathalyzer test. The cops also failed to read him any of his rights when they pulled him over. He agreed to be breathalyzed (even though he had passed his other two tests) and blew something over the legal limit. His car was impounded and the cops told him that he needed to find a ride home or else they would arrest him and he would spend the night in jail. What would have happened to him if he had refused the breathalyzer? Why didn’t the cops just arrest him on the spot? Were they trying to bust someone else for a DUI by having someone come pick him up around 2 a.m.? And what is the whole deal with having your rights read to you? I heard somewhere that cops don’t have to do it anymore because of the patriot act. The whole situation seems a little sketchy. What is the likelihood that he’ll be charged with the DUI?

Dear “I have a cousin, who knows this guy, who......”

Cops stop people based on reasonable suspicion. Reasonable suspicion of DUI is easy: lane travel, excessive slow or high speed, sitting through greens or running reds, etc. If you’re stopped for a DUI, then they’ll give you Field Sobriety Tests (FSTs). These could be a nine step turn, leg lift, etc. They have several choices. Your BAC (blood alcohol content) can be checked with a portable breathalyzer test (PBT). I imagine you, I’m sorry, your “friend” did well enough on the FSTs, and the PBT result wasn’t high enough, so they kicked your friend loose.

Now, a PBT result isn’t evidence. To get evidence of a DUI, the cops would’ve had to “arrest your friend on the spot” and escort him off to an intoxilyzer machine (they aren’t portable). Your friend would blow into an intoxilyzer machine, or do a blood draw or piss test if they believe drugs are causing his impairment. Also, he’d receive a verbal admonishment that if they refused to blow, his driver license would be revoked. If you refuse, they’ll just get a search warrant and take your blood anyway. Save your license. After your friend blows, the machine spits out a printed form. The form shows information like time checks, air blank results showing no contamination, and your friend’s intox result. This form is accepted as evidence at trial.

If your friend had gone through the intox machine process, and assuming he blew over a .08 BAC, the cop would’ve advised him he was under arrest and interrogated him. Prior to asking any “in custody” or “interrogation” type questions related to the DUI, he’d be read his Miranda Rights. It’s all on a “fill-in-the-blank” DUI citation form, step by numbered step, so even the cops can’t screw it up.

It makes no sense that they’d try to set someone up who’s coming out as a ride home (unless the ride is the cop’s ex-girlfriend). DUI’s are everywhere. The odds the ride would be smashed vs. all the drunks who just drove past your stop are slim. The policies of most departments require your friend’s drunk, stinky, puking, obnoxious ass to be released to a responsible adult.

Absolutely no charges could be filed now for DUI. No probable cause for his arrest at the stop equals no trial now. A DUI results in a “state tax impound” of the car. Why did they hook it if there was no DUI? Most cops in this situation (drinking but not drunk) will allow you to park your car and get it later or let a sober driver take over.

The Patriot Act doesn’t absolve a cop of the Miranda requirement after a DUI arrest. However, if your “friend” graduates from DUI to planning a terrorist attack in the USA, and he calls his buddies in Afghanistan for help, then he’ll probably become well acquainted with the USA Patriot Act.

And, if it was your boyfriend who told you the DUI story, he has a new lover. Dump him.

With Love,
Dr. Dick

Need some advice from a friendly, anonymous police officer? Email your question to: