Police and CHP officers are trained to interrogate DUI suspects with a series of questions that help build the prosecution case, and dismantle your defense. Two of the most critical questions are: “What have you had to drink?” and “When did you stop drinking?”
The vast majority of people answer with: “I had two beers two hours ago.” That statement is so common, it might as well be pre-printed on DUI police reports. It is also almost always untrue. That is, it’s a lie. Do you think jurors like liars? Do you like liars? That’s really why the police ask the question in the first place. They expect to catch you in a lie. So then why do so many people lie when the truth will set them free? (More on that in a minute.) Well, people are always nervous when stopped by the police; the police never read them their rights BEFORE the interrogation—which reasonable people expect; and it’s also true that you’re not under oath. My advice: politely tell the officer that, on the advice of your attorney, you will exercise your Fifth Amendment right to remain silent. Silence is golden.
But if you’re going to make a statement about your drinking, honesty is the best policy. When you’re pulled over a block away from the holiday party (or the bar) where you just had “one for the road,” do you think anyone would believe you had “two beers, two hours ago?” The irony is, if you just told the truth, you would have a very powerful defense to a Driving Under the Influence case.
If you think about it, it takes time before the alcohol in your drink gets into your blood stream. Some people even try to get home before that last free-poured double “hits” them. So if you’re pulled over just after leaving the party or the bar, the alcohol from those last few drinks is still being absorbed into your blood. Alcohol can’t impair you until it actually enters you bloodstream. Your blood alcohol level starts at zero and rises as you drink. But even after you stop drinking, your blood alcohol level keeps rising until you reach your peak. You’re not DUI until your blood alcohol rises above the legal limit (0.08% in California), or until the alcohol impairs your ability to drive to such a degree that you have lost the ability to drive the way a sober person would under similar circumstances.
The peer reviewed scientific literature establishes that the reasonable range for the time to reach peak blood alcohol can go out to two or even three hours (and longer). That means that when the officer pulls you over, your blood alcohol is rising, and it will continue to rise until all of the alcohol in your stomach is absorbed into your blood. It’s common for the police to take an hour or longer before you take your implied consent test (blood or breath). During that time, your blood alcohol is getting higher and higher, and by the time you take the test, you have a significantly higher blood alcohol level than when you stopped driving—and that’s the legal question in a DUI: what is your BAC at the time you stop driving.
If you just tell the officer the truth, then even the DA should understand that the .12 test result is unreliable because those final drinks at the bar were in your stomach when the officer pulled you over. They only enter your bloodstream after you’re pulled over. “Two beers, two hours ago,” pretty much kills that. It lets the DA claim that you stopped drinking hours before you actually did—and it also makes you a liar. Now, there are ways to deal with it, but it would be so much easier of people just told the truth. In life, as in life, honesty is the best policy. But silence (under the Fifth Amendment) is golden.