But Officer I Only Had One Or Two Beers

I Only Had One Or Two Beers Is Usually the Wrong Answer.

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

Second, if you didn’t have one or two beers, then it will come back to discredit you and will limit your options at the DMV and trial.  If you blow around .08, then you had approximately 4 drinks. Widmark’s formula** tells us that every drink raises the BAC of the average man by approximately .02.  Thus, if you have a .08 BAC means that the you 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.

I cannot stress enough how important it is for you NOT to answer the cop’s questions.  You shouldn’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 held that answers to pre-arrest questions are not protected by Miranda. The US Supreme Court actually said they could ask 1-2 questions. In California, the DMV and Courts stretch that to allow the 23-30 DUI investigative questions asked by officers. Your statements will be used to contradict any testimony you later give.

I Drank 2-3 Beers 2-3 Hours Ago Is Usually the Wrong Answer.

When the cop asks, “When did you start/stop drinking?”. You want to make it seem the drinking happened long before the stop.  Your credibility may be affected later if you do. After you learn the way alcohol behaves in your body. At that point it is too late for you to tell the truth.  In most situations, if you drink sooner to the stop it is better.

This is for two reasons: First, when you are tested in the absorptive phase what you blow is higher than actual Blood Alcohol.  So, when you are given a breathalyzer test in the absorptive phase, what the machine reads will be higher than what is actually in your system. Because of this, commonly used breath testing machinery manuals state you shouldn’t use the machine for 120 minutes after the person stops drinking.

Second, you spend between 50 minutes and 2 hours digesting alcohol. Your BAC at the time of driving may be less than .08.  If you answer you drank a long time ago, then the evidence will be used to show that the you are in the elimination phase and your BAC was higher at the time of driving.

What Should You Do?

I cannot stress enough how important it is for you NOT to answer the cop’s questions.  You shouldn’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 held that answers to pre-arrest questions are not protected by Miranda. The US Supreme Court actually said they could ask 1-2 questions. In California, the DMV and Courts stretch that to allow the 23-30 DUI investigative questions asked by officers. Your statements will be used to contradict any testimony you later give.

If you’ve been arrested for a DUI, call me at 213-479-5322 to discuss your case.

* 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?