SouthFlorida.com | City Link Magazine

Operating a South Florida law firm that specializes in traffic cases has given Stephen Lustig a unique perspective on drunken-driving arrests. Handling hundreds of DUI cases in Broward and Miami-Dade counties has taught Lustig that the great majority of people arrested are otherwise law-abiding citizens, not the drunken monsters they are sometimes portrayed to be.

"Let's face it, we've all been there. Even the people arresting you have been there. And it usually happens to people who have never been in trouble before," Lustig says. His own best friend was arrested on a DUI charge a few weeks ago.

Like his friend, most of Lustig's clients didn't crash into anything or hurt anyone. Instead, they were randomly picked out in a DUI blockade or stopped for an otherwise minor traffic violation.

He has also learned that most drivers never consider what they'd do during a traffic stop if a cop were to ask them if they've been drinking. Do you take the Breathalyzer test? What do you say if the officer is asking you to step out of the car to perform some physical tests? Do you say anything at all?

"It is complicated," Lustig admits. "Even some prosecutors don't understand all the laws clearly."

There is no ambiguity, however, in what happens when someone is convicted of misdemeanor DUI. A first-time offense resulting from an arrest that involved no crash or injury can result in a maximum six-month jail sentence. But most first-time DUI offenders are placed on probation for one year, forced to perform at least 40 community-service hours and have their license suspended. They also must meet with a probation officer once a month, attend mandatory driving courses and be given psychological screenings for drug and alcohol abuse.

Add court costs and a $2,500 attorney's fee, and even the most minor drunken-driving arrest can cost more than $5,000, not including the huge increase in insurance costs that will result and will remain in effect for years. Defense attorneys say that despite the monetary costs and legal hassles, drivers stopped for suspicion of DUI too often panic and unknowingly give up their basic legal rights.

"One of the most common things I see [on police videotape] is people who think they are going to talk their way out of it," says Tyler Harding, a criminal defense attorney in Palm Beach County who has handled more than 100 DUI cases. "What usually happens is that the more they talk to the officer, it becomes clear they were better-off being quiet. Because the more you talk, the more you are being recorded and the worse it looks."

In addition, many people who get arrested for misdemeanor DUI made incredibly bad choices during the traffic stop, inadvertently giving the police cause to arrest them. "Ordinarily, a person thinks they have a right not to incriminate themselves, but the officer asking you to perform tests is asking you to do exactly that," says Doug Leifert, whose law firm, Leifert and Leifert, handles hundreds of DUI cases in Palm Beach County.

People often incriminate themselves during a DUI investigation, Lustig says. He remembers one woman arrested for DUI who had no idea that her interrogation was being videotaped by a recorder in the patrol car. The woman was in the middle of performing a series of roadside sobriety tests -- and doing poorly -- when Lustig says she blurted out, "I couldn't do this even if I was sober." Needless to say, the woman's comment did nothing but help the prosecution's case.

"It doesn't matter if you have one drink or 10 drinks, you are going to smell the same and are going to be investigated if you are stopped by police," Leifert warns. So if a police officer stops you and asks, "Have you been drinking?" remember the following:

1. Be smart: It is always better to find an alternative to driving if you have been drinking. The cost of cab fare is squat compared with defending yourself in a DUI case. And chances are, your traffic stop is being audio- and videotaped by a camera mounted in the patrol car's dashboard, so whatever you say or do may come back to haunt you in court.

2. Know your rights: You can refuse to take a roadside sobriety test. Criminal defense attorneys say tests such as walking a line heel-to-toe and touching your nose with an index finger are not mandatory. Many of the physical tests are difficult to pass when completely sober. Police officers make maneuvers -- such as balancing on one leg -- look effortless because they've practiced them many times. Comparing their example with your awkward attempt on videotape won't look good before a jury.

3. To blow or not to blow: If you've never refused a Breathalyzer test, or if your license hasn't previously been suspended for DUI, you may want to consider refusing the test. First-time refusals are treated as civil infractions, not a crime.

Attorneys warn that you probably will be arrested for refusing a Breathalyzer test. "But if you don't have a breath test, then the case becomes a case [based on] opinion," Leifert says, and that's easier to defend. However, the punishment is harsher for people who refuse to take the breath test. If you blow 0.08 or higher, your license will be suspended for six months with permission to apply for a hardship license after 30 days. By refusing the test, your license will be suspended for a year with permission to apply for a hardship license after 90 days. But you will not have a DUI conviction on your record.

4. Clam up: Politely and calmly tell the officer that you would like to speak to an attorney before performing any DUI-related test. The officer doesn't have to wait for one before arresting you, but you have not given him additional evidence to build a case for your conviction.