This article is not meant for the person who had a glass of wine over the course of a 2-hour dinner. Remember everyone has a different tolerance level.

There are basically 6 primary areas of evidence that will be used against you in court if you elect to fight your case. By knowing your rights you can limit the amount of evidence a prosecutor can use at trial and increase your chances of winning. These 6 areas are as follows:

  1. Your driving pattern.
  2. Your personal appearance
  3. Admissions to drinking.
  4. Performance on field sobriety tests.
  5. Results of a breath test.
  6. Video of either the booking or the stop.

You can’t do much about number (1) since you don’t plan on getting stopped while you are driving and observations such as slurred speech and bloodshot eyes (2) are not easily eliminated. You can however, easily limit the impact of numbers (3)-(6). The best way to explain my theory is to give an example of an actual case.

You and your wife met friends for dinner at a local restaurant. You remember having 4 drinks and feel fine to drive so you get behind the wheel figuring you’ll easily make the five-mile drive home. Bad decision.

Two miles from home a Massachusetts State Trooper sees you weaving within your lane and decides to follow you. You see the cruiser and you begin to get that sinking feeling in your stomach. You repeatedly begin to look in your rear view mirror making your driving worse. Your luck runs out at 11:08pm as the trooper puts activates the lights to his cruiser around 1 mile from home. As you slow and move to the side of the roadway, your heart begins to race and will soon learn that simple things like locating your wallet, registration or license which earlier in the evening would have sounded like no big deal, have now become more difficult than calculus.

The trooper approaches your window and asks for your license and registration. As you begin fumbling for the requested items he asks you, have you been drinking? You say as most people would in your situation, I had a couple of beers earlier with dinner.

You are now 98% of the way toward an OUI arrest. You are now asked to do field sobriety tests and since you’re an athlete you figure no problem I’ll be able to pass. Wrong. I promise you, there will be issues regarding your performance on these tests. Maybe you stumbled a bit, used your car for support getting out, didn’t count out loud or didn’t touch heel to toe on every step. Maybe you slurred the alphabet, started one of the tests before he said to or used you arms for balance when he didn’t want you too. In any event the trooper places you under arrest.

Once at the police station you will be given the opportunity to take a Breathalyzer test. You figure that since you only had 4 drinks & weigh 225 pounds, you will pass the test. When you have been drinking you don’t keep count and given the stress of the situation you want to think you will pass and probably undercut how many drinks you actually had. Plus, the trooper has just informed you that if you refuse the test your license loss will be 180 days, if you take it and don’t pass, its 30 days. You elect to take the test and your reading of .11 is over the legal limit.

If you have a few too many drinks and made the poor decision to get behind the wheel of your vehicle at least know your rights and how you can limit the chances of the prosecutor proving the case against you.

When the police begin to ask you questions about whether you have been drinking, respectfully decline to answer any questions that relate to drinking. Always be polite. You also have the absolute right to refuse to do field sobriety tests. The police will never tell you that they are optional. I can assure you that you will be placed under arrest BUT 2 critical pieces of evidence that is used in court will be missing. Admissions to drinking and a poor performance on field sobriety tests. Unlike most states, prosecutors in Massachusetts cannot comment on your refusal to take field sobriety test.

If you are placed under arrest NEVER take the Breathalyzer at the police station. That is the 3rd piece of critical evidence that won’t be able to be used against you. Just like the field sobriety test refusal, the prosecutor cannot comment a Breathalyzer refusal a trial. You are much better taking the portable breath test if offered at the scene since that test is not ultimately allowed to be used in court but can be used to deterring your level of impairment. The benefit is that if the reading is below the legal limit, there is a much greater chance that you might just be given a citation.

Your case isn’t over yet. Most department’s video tape the booking procedure and some even videotape the actual stop, There is no defense against someone who passes out at the booking table or falls backward against a bench. Make sure you are polite, courteous & respectful to the officer. Only answers questions posed by the officer and remember that you are being taped. That is the best way to limit the last area of evidence that will be used against you.

Schedule a Free Initial Consultation.

I have had tremendous success in the area of my practice and understand what needs to be done in order to increase your chances of obtaining a successful result.  If you have questions, please contact me at my office at (508) 791-9001 or by cell phone at (508) 769-7995.   You may also e-mail me or text me.  I take great pride is a very quick response time and will promptly schedule a free initial consultation at your convenience.  I have also begun to conduct quite a few meetings via FACETIME or SKYPE for those clients who are either out of state or have license issues.