December 26, 2008 By Wallin & Klarich

What you don’t say and do might help you

If you’re over 21, what you don’t say in the course of a California driving under the influence investigation might be the difference between winning and losing your case.

In order to know what I mean by this, you have to understand how many prosecutors break down a DUI case. Essentially, they break down these types of cases into thirds:

First, prosecutors evaluate the driving pattern in a case. They read the report to see what kind of bad driving the officer observed before the stop. If the officer describes an driver that swerves, makes erratic turns and stops, then a California DUI case is much stronger. Since, the prosecutor needs to prove that you could not drive with the same care as a sober person would under same or similar circumstance, the driving before a traffic stop becomes extremely important.

Second, the prosecutor wants to know how you performed on the chemical test. Keep in mind that if you are taken to the station and told that you have to submit to a chemical test, you have little choice in the matter. At that point, you have to take a breath test or a blood test. If one of the tests is unavailable for whatever reason, you have to submit to the other. Failing to submit to a chemical test at the police station can have consequences that might make your case worse for you.

Third, the prosecutor will look to see how you performed in the field sobriety testing investigation.

Knowing your rights is critical in this phase of the investigation.

Most people think that if they pass the field sobriety tests, they should be good to go. The problem is that there is no such thing as “pass” or “fail” with respect to a field sobriety test. The cop makes notes on how you perform, and trust me, he’s not looking to highlight how well you touched your nose on one of the examinations.

He’s just building evidence against you. Every time you fail to follow instructions, the officer is making sure to note that miscue in his report. There is no benefit to doing the field sobriety test, nor is there any benefit to having you answer any of the field sobriety investigation questions.

Answering those questions can never be good for you if you’ve had at least one sip of alcohol and are now behind the wheel. Even if you’re not under the influence, those questions don’t help you. They just build a case against you.

Always remember that you don’t have to answer the field sobriety questions. The fifth amendment says that you don’t have to say anything to a police officer if you don’t want to. That means you don’t have to tell him how many drinks you’ve had that night or when the last time you ate. It’s your right to keep quiet and you should assert it. Otherwise, you’re building evidence against yourself.

The right to remain silent also applies to refusing to take a field sobriety test. You don’t have to touch your nose or follow the officer’s finger. There’s no benefit to taking those tests and you’re probably going to mess the test up anyway because you have an officer there watching you and waiting to take you to jail.

By refusing to answer field sobriety questions and refusing to perform those ridiculous tests, you’re effectively taking away a third of the prosecutions case.

What you don’t say can’t hurt you.

We at Wallin & Klarich know the law. Our California DUI defense attorneys have been defending clients for over 30 years. Call us at 888-749-0034 and visit us at

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