Like the answer to most legal questions; it depends. Of course, the only sure way to avoid a DUI is to avoid drinking and driving. Arizona has some of the harshest DUI laws in the country and police in Tucson are out and about every night looking for offenders. Even with the widespread availability of rideshares like Uber and Lyft, there are always impaired drivers on the road, especially post happy hour and late night. During any traffic stop, even if the driver was not driving in a manner indicating impairment, police are looking for any sign that the driver may be impaired.
Every night, many individuals who are not impaired, are pulled over on suspicion of DUI. In order to pull you over for any reason, a police officer must have reasonable suspicion that you are violating the law. Therefore, if you are violating any traffic law, you can be pulled over and a police officer can then assess whether you are impaired. If you are not breaking any traffic laws, police may still pull you over if they observe driving behavior that gives them reasonable suspicion that you are impaired. This includes:
- Multiple minor deviations over the white line
- Going too slow
- Sitting too long at a stop sign
- Unexplained braking
- Sudden or very slow lane changes
Any of these behaviors could have a totally reasonable explanation, but a police officer observing these behaviors does not know what is going on in your car or in your mind when they are observing your driving.
The Traffic Stop
An officer cannot delay a traffic stop unnecessarily, therefore during the time the officer is asking you for your license and other basic information, the officer is also trying to assess whether or not you are impaired. If they smell alcohol on your breath or you exhibit slurred speech or other signs of impairment, the officer will further investigate whether you are impaired.
They may also ask how much you had to drink. While you are not obligated to give this kind of information to the officer, this is only one piece of evidence that the officer is trying to obtain in order to justify further delaying the stop and performing a breath test and/or field sobriety tests. If the officer pulled you over for weaving in and out of the lines and you tell the officer you have not been drinking, they can still proceed with their investigation based on your driving behavior, if there is an odor of alcohol, or some other sign you had been driving.
Prior to Arrest
If, after talking to you, the officer suspects you are impaired, based on their observations and/or your answers to their questions, the officer will likely ask you to perform a series of field sobriety tests. While an officer can order you to step out of your vehicle, an officer needs your physical participation in order to perform field sobriety tests. Almost all officers are trained in performing three common tests Horizontal Gaze Nystagmus (HGN), the walk and turn and the one leg stand. These are not necessarily the most reliable tests and many factors can affect your performance, but the results of these tests can give the officer probable cause to arrest you and test your BAC (blood alcohol content).
According to law enforcement, the most reliable (but not totally infallible) field sobriety test is the Horizontal Gaze Nystagmus or (HGN) test. This is a test that measures involuntary jerking of the eyeball that occurs as the eyes gaze from side to side. Not all officers are trained to administer the HGN test. If the officer who pulled you over is not trained to give the HGN test, but has other evidence that you are impaired, the officer may call for another officer to come to the scene to administer HGN. Like the other field sobriety tests, the HGN can only be administered with your consent and the result can be affected by certain medications and medical conditions.
Finally, prior to arrest, the officer may administer a preliminary breathalyzer test (PBT) with a portable hand-held testing device. If you have not been arrested, the officer cannot perform a breathalyzer test without your consent. PBT results are not used in court as proof of your impairment, but like field sobriety tests, the results of the PBT can give the officer probable cause to arrest you for DUI and test your BAC.
Refusal to comply with officer requests is also one factor that an officer can use to determine if you are impaired and if there is probable cause to arrest you for DUI.
If you are placed under arrest, you will usually be asked to submit to breath testing, usually by a mobile testing unit or a blood test where an officer draws your blood at the roadside. You could also be transported to another location for blood testing or breathalyzer testing (with a more accurate machine than used for PBT). Under Arizona law, if you refuse this testing after a lawful arrest, your driver’s license may be suspended for 12 months. Furthermore, if you refuse, the officer can fairly quickly obtain a warrant to perform the blood test.
If you want to call an attorney prior to consenting to any testing, or talking with the police, that should be allowed, but make sure that it is clear to the officer that you are not refusing the test at this point.
Ultimately, if you are pulled over, you will need to decide what to do, based on your individual circumstances. Whether you decide to politely exercise your rights to remain silent and to counsel before making any decisions, or comply with all the officer’s requests, if you are truly impaired then it is highly likely you will be charged with DUI.
If you have been charged with a DUI, an attorney can help to mitigate the consequences that the DUI could have on your career and in some cases, an attorney can challenge the procedural legality of the DUI stop, evidence collection, or the arrest which can result in the dismissal of your case or suppression of evidence. A DUI defense attorney can also represent you in your license suspension hearing and advocate on your behalf. Most importantly, if you want to contest your DUI charge, you should hire an attorney who is highly experienced and regarded and intimately familiar with local DUI procedures and the collateral consequences a DUI could have on your career.