But Officer I Only Had One Or Two Beers

Telling Cop You Had One Or Two Beers Is Usually the Wrong Answer.

Those pulled over for a traffic stop invariably tell the arresting officer that they had “one or two beers” when asked. This is a mistake for two reasons. First, the person pulled over is under no obligation to assist the police officer in building a case against them.* It is axiomatic that unless you are a lost six year old, the police officer is not there to help you.

Second, if it’s not true that the person had one or two beers, then it will come back to discredit them and will limit their options at the DMV and trial.  If the person blows around .08, then they had approximately 4 drinks. Widmark’s formula** tells us that every drink raises the BAC of the average man by approximately .02.  Thus, a .08 BAC means that the person imbibed 4 drinks.  So when you tell the officer that you only had one or two beers and you blow .08 and later the alcohol tech testifies that you must have had 4 drinks based on Widmark’s formula, your credibility is shot.

Again, I cannot stress enough how important it is NOT to answer the cop’s questions when pulled over for a traffic infraction/DUI investigation.  {I wouldn’t even answer, “Do you know why I pulled you over?”} Contrary to popular belief, your statements to the officer are not made inadmissible because he didn’t read you your Miranda rights.  The US Supreme Court in Berkemer v. McCarty has said that answers to post-stop/pre-arrest questions (the US Supreme Court actually said 1-2 questions; in California the DMV and Courts stretch that to include the 23-30 DUI investigative questions asked by officers) are not constitutionally protected by Miranda. Your statements will be used to contradict any testimony you later give.

The second answer that is almost universally given in one form or another is to the question “When did you start/stop drinking?. The detainee’s instinct is to make the drinking as long as possible from the stop and answers accordingly.  This may impact a defendant’s credibility later, after the way alcohol behaves in the body is explained to him, and it is too late to tell the truth.  In most situations, the closer to the stop the person was driving the better for them.

This is for two reasons: First, breath alcohol in the absorptive phase is higher than actual Blood Alcohol.  So, when given a breathalyzer test in the absorptive phase, what the machine reads will be higher than what is actually in your system. Commonly used breath  testing machinery manuals state that it is improper to use the machine for 120 minutes after the person stops drinking because of this.

Second, because alcohol is absorbed over time and it can take between 50 minutes and 2 hours (or longer after you eat) to fully absorb alcohol, the person’s BAC at the time of driving may be less than .08.  An answer by defendant that pushes the time drinking stopped further back will be used to evidence that the Defendant is in the elimination phase and his BAC was higher at the time of driving. See Graph.

* Again, if you have NOT been drinking, cooperate with the police.  If you have been drinking, even a little bit, it is highly likely that regardless of whether you cooperate you will be going to the station, so why give the police evidence that will later be used against you if you are charged?

** Widmark’s formula was developed in the laboratory under strict controls. It is probably not scientific when discussed by a alcohol tech where the only variable that is objectively added into the formula is BAC at some random point after the stop.  Further, Widmark’s formula requires imputting a constant based on the ‘average man’ or ‘average woman’.  Anyone average out there?

If you've been arrested for a DUI, call me at 213-893-8640 to discuss your case.

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