One of the most important and critical things in a DUI investigation is when a person stopped drinking. Depending on this, a person can be in the elimination stage or the absorption stage or peaking. Why is this significant? If a person is in the absorption stage then it is not possible to tell whether or not his blood alcohol content is over the legal limit at this time. Often people will make the mistake of telling the officer anything at all. In my opinion and especially in Southern California, it is important to tell the officer you want to exercise your constitutional rights to remain silent. You may have to eat up a tow fee but it will vastly improve your chances of fighting your case. In my opinion, this is a good move unless you are on probation. There are two ways this can end up.
Scenario 1: You tell the officer you had 2 drinks 2 hours ago. He will decide to arrest you anyways. Those two drinks will be used against you. When it goes to trial, the state will say you had a consciousness of guilt which is the reason you lied. Your attorney will have to the extra work with the expert on establishing that there were more drinks involved and that this is an incomplete drinking pattern. Thus there is more to drink but there must be an assumption someplace about the time.
The Pros: Hopefully he will let you go if you cooperate.
The Cons: He has already made up his mind and is collecting evidence under the guise of letting you go. You will get arrested and the process will start.
Scenario 2: You tell the officer respectfully you do not want to answer any questions and ask if you are free to go. If not than go ahead and arrest you. If the officer has decided to arrest you then he will arrest you anyways. This is the ideal scenario in my opinion. There will be nothing to use against you. There will be no drinking pattern against you. I’d prefer this pattern with a .12 over a .10 with a drinking admission of 2 hours ago any day.
The Pros: You will be putting him on the spot and forcing him to arrest you. It will be much harder to prosecute you with the lack of evidence and drinking admissions and field sobriety test.
The Cons. The officer will not like this and will make this an unpleasant experience.
Have you been pulled over by a police officer and given the breath machine? How was your experience?