Criminal Defense DUI & Traffic Offenses

5 Misconceptions DUI You Need To Know

5 Misconceptions DUI You Need To Know
Edited by Saul Bienenfeld

1. I Refused The Breathalyzer Test; Therefore, No Evidence Will Exist Against Me.

This concept is both true and not true.

My preference is for the majority of people not to take the breathalyzer or any breath tests, because the police officer’s opinion is the evidence that is ultimately used against the person in the case.

Even if someone does not take the breath test, the police officer will still tell the judge and the court his opinion about the way the car was operated and the way the person appeared. The officer will state if the person had red, glassy eyes, slurred speech, unsteady feet, and an odor of alcohol. This is the evidence based upon the officer’s experience. In his opinion, therefore, the person is intoxicated.

It is always a plus if the officer does not have the breathalyzer machine. Note that I always tell people to take the tests if they have a commercial driver’s license. However, I tell people most often not to take the breath test.

2. I Performed Rather Well On The Standardized Field Sobriety Tests; It Will Be An Easy Case For Me.

Often, people will admit that they were very drunk and think they performed well of the field tests. However, if there is a video, they can see they did not actually do well. Most people think they performed well on those tests. However, the tests were designed for failure. People cannot perform well.

The police officers ask the person to do maneuvers or performance agility tests. They ask people to do things that are not natural.

Afterwards, they look for certain clues that indicate somebody has impairment or is intoxication. The case is never easy when somebody says he performed well. This is because a police officer on the other side will say that he did not perform well.


The better people perform on these tests makes the case easier; however, it is never an easy case.

3. I’ve Refused The Breathalyzer, and I’ve Also Refused The Standardized Field Sobriety Tests. I Should Be Home Free. This Is An Easy Case For Me To Win.

This is also a great way to look at the case.

The more tests people refuse to do, the better off they are. As an experienced attorney, I would prefer it if the evidence was simply what the person did, instead of the tests. For instance, these actions could include the way the car was actually being driven, the way the person pulled over when the police put the lights on, and his interactions with the police officer.

Furthermore, this could include the way he refused or declined to take the breath test or declined to take those field tests. Note that as long as he is able to say that he is not taking it because a lawyer told him not to, or that he will not take them because he is not physically capable.

The person would not be home free. However, this would explain why somebody would not take those tests.

In New York, a person’s failure to take the breath test would be the only thing possibly used against him if he exercised the right to remain silent. The person is told that if he does not take a breath test, then he can lose his license for a year. Furthermore, the government is allowed to enter into the trial and tell a jury that the reason the person did not take a breath test was because he knew he was guilty and would fail the test.

The fewer of these tests that people take is better, as long as he has not said the wrong thing when declining to take the tests. This surely makes the defense of the case a lot better.

4. The Police Officer Did Not Read Me My Miranda Rights. The Case Should Be Dismissed.

This is one of the biggest misconceptions. All too often, we try to explain that the police never really have to read someone the Miranda Rights.

The only time he does is if he is going to interrogate someone and question him after arrest. If the police has someone in custody in the police station after telling him he is under arrest and begin to ask questions, the police do not have to tell the person that he has the right to remain silent.


Most of the damage is done at the scene before the person is placed under arrest. The police officer asks if he had anything to drink that day or how much he had to drink. He will ask where the person was coming from and where he was going.

In New York state, these questions are considered investigatory by the court. Instead of an interrogation, these questions are part of an investigation. Thusly, the police officer does not have to tell the person he has the right to remain silent.

However, if the person has already spoken to cooperate with the police, his words can be used against him. After the police places the person under arrest for driving while intoxicated, the police does not have to read the Miranda Rights.

5. I Got A DUI For Prescription Medicines, As such, I Really Don’t Have To Worry.

When the person gets a DUI for prescription medications, this just means the person doesn’t have to worry about being charged with an illegal substance, on top of his DUI.

The law in New York states that a person cannot operate a motor vehicle if his ability to do so is impaired by a substance. Alcohol is a legal drug, even if it is not necessarily prescribed.

Prescription drugs are legal drugs. However, all drugs have some sort of warning against operating heavy machinery or operating a motor vehicle. This is because the drugs might make the person drowsy. Think about the drowsiness offered by any over-the-counter medication, like cough medicine.

If something makes a person tired, even if it was legal, then this does not mean the person should drive afterwards. A person could be arrested and charged with DWI if the medication makes him less than 100 percent alert while driving the car, even if it’s a legal prescription medication.


About the author

Saul Bienenfeld

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