Both prosecutors and defense attorneys are frequently asked by friends and family members how to avoid a DUI charge in Oregon. People often ask out of curiosity, as if there’s some secret trick or loophole they might want to remember in the future. The truth is that– even if there were a sure-fire way to avoid being arrested or prosecuted for DUI– no one in their right mind would actively encourage others to drive while impaired. Just because defense attorneys defend people accused of DUI does not mean that DUI defense attorneys are pro-DUI. However, there are recommendations a DUI defense attorney can recommend in order for the typical driver to do in order to avoid being unfairly targeted for a DUI investigation or falsely accused of DUI.
Oregon only prohibits driving under the influence of alcohol or controlled substances (prescription or illegal recreational drugs). Being distracted, angry, or even tired & sleepy do not give rise to a DUI charge in Oregon. With that in mind, the best way to avoid a DUI charge is to not consume any alcohol or controlled substances– at any time– prior to driving. Keep in mind that alcohol can remain in one’s system for hours. Certain controlled substances such as marijuana can leave metabolites in the body for up to 30 days.
Many people mistakenly believe that police officers and prosecutors will not prosecute DUI cases when the breath test reading is less than .08. This is not true. There are many counties in Oregon where prosecutors will charge DUI cases even at levels half of the presumptive legal standard of .08. Also, many people mistakenly believe that they are not at risk of a DUI based on use of marijuana because they haven’t smoked marijuana for several hours or even several days prior to driving. However, the truth is that police officers and prosecutors don’t really care when marijuana was smoked. If a driver appears tired or has red eyes and there is marijuana metabolite in the driver’s urine, most police officers and prosecutors will assume that the driver is lying about when they used, and they’ll charge that case as a controlled substance DUI. Similarly, most police officers and prosecutors do not care if controlled substances have been prescribed for a driver to use. If there is any indication the medication is affecting the driver– and if the medication can be shown to be in the driver’s blood or urine– aggressive police officers and prosecutors will charge that driver with DUI.
For those who ever use controlled substances or consume alcohol at any time prior to driving, here are a few other suggestions for how to avoid being unfairly investigated, arrested, and prosecuted for DUI:
- Make sure there are no problems with your vehicle equipment. Police officers regularly target drivers who have dim or burned-out tail lights or license plate lights, a burned-out headlight, or expired license tags. Most police officers on patrol late at night are looking for any possible reason to pull over vehicles to conduct a DUI investigation. Don’t give law enforcement a reason to pull you over.
- Don’t speed. It doesn’t matter if you’re going 10mph or 1mph over the speed limit. Don’t give law enforcement a reason to pull you over.
- Obey all traffic control devices. Drive carefully within your lane, signal all turns, come to complete stops at stop signs and red lights, etc. Again, don’t give law enforcement a reason to pull you over.
- Be extremely carefully driving out of bar parking lots. Many drivers think it’s illegal for police officers to sit outside of bars and target drivers leaving. It may be unfair, but it’s legal and extremely common. A police officer who pulls over a driver coming out of a bar parking lot knows there is a very high likelihood that the driver has consumed some alcohol. To the officer, it doesn’t matter how much. The officer knows he’ll have reasonable suspicion to expand nearly any basic traffic stop into a full-blown DUI investigation and likely an arrest. This will boost the statistics for the officer and his/her department for things like state and federal grants– regardless of whether it’s fair or results in a DUI arrest. Drive extremely carefully out of bar parking lots. Again, don’t give law enforcement a reason to pull you over.
- If pulled over, provide the officer with your license, registration, and proof of insurance. Be polite, but do not answer any questions about where you were coming from, where you were going, or whether you had anything to drink. The officer is not making casual conversation. Whether you realize it or not, the officer is investigating you as a suspect in a crime. Be polite, but firm: Your evening plans are none of the officer’s business. Period.
- If asked to do Standardized Field Sobriety Tests (SFSTs), decline. The officer will push the issue and read to you what is called a Rohr’s admonishment. Stand firm. Retain your rights. Do not consent to any mental or physical testing. If the officer arrests you after you decline the tests, he/she was very likely going to arrest you anyway, so you would gain nothing by attempting to perform awkward physical tests by the side of the road.
- If the officer pretends to be your friend, attempts to act casual, attempts to suggest that your cooperation will result in a better result, don’t believe the lies. Police officers are trained in using deception. It is perfectly legal for an officer to mislead, be dishonest, and to lie to a suspect in a criminal investigation. If you are a suspect in a crime, the police is officer is never your ally. Stop talking to them, and ask to speak with an attorney.
- If you are arrested, don’t speak with the officer during the ride to the jail unless required (e.g. to arrange for a tow of your vehicle or to secure a ride from the jail once you’re booked and released). Many drivers will chit-chat with the officer during the 15-30 minute ride to the jail and will make various statements which will later be used against the driver.
- If asked to provide a breath test, ask to first speak with an attorney. The officer will be required by law to allow you 15-20 minutes, with privacy and a phone, to attempt to contact an attorney or other person of your choosing.
- Most officers will ask a series of questions just prior to administering a breath test. Don’t answer them. Any of them. Questions about your medical history, when you last slept, what you drank, what you ate, etc. These questions are none of the officer’s business and they are being asked to try to manipulate your answers into incriminating statements to be used against you later.
- If you ultimately decide to provide a sample for a breath test, clear your lungs out before the test with a breath of fresh air, and blow with one steady stream of air. Holding your breath– perhaps because you’re nervous– will likely increase the breath test reading. Stopping and starting repeatedly may also increase the breath test reading. Do not blow any longer than the machine requires. When the tone stops, you can stop blowing. Ignore the police officer’s demands that you keep blowing and blowing. As a general rule, the longer you blow, the higher your breath test reading will go. Officers know this, and that’s why they often shout at suspects to keep blowing even after the breath testing machine has a sufficient sample.
- If you ultimately decline the breath test, be polite but firm with the officer, and do not provide any explanation for why you are declining the test. It’s none of the officer’s business. Simply say, “No” when asked if you’ll blow.
- If you are cited or booked for DUI, remain calm. Do not talk with anyone about the facts of the case, and contact an attorney immediately. Many of the rights you have will be lost if you talk about the case to persons with whom you do not have a legal privilege and right of confidentiality. Similarly, there are rights and opportunities you can lose if you delay in seeking legal representation. Do not wait to go to court for your arraignment before calling an attorney. Call an attorney within 24-48 hours after arrest if you possibly can.
As suggested earlier, there is no real sure-fire way to avoid a DUI arrest. But you should do what you can to avoid being unfairly targeted by law enforcement for a traffic stop and investigation. If you are stopped, you want to remain silent, and decline any mental or physical tests. If you’re arrested, you want to remain silent, ask to speak with an Oregon DUI attorney about whether to perform the breath test.