You're not going to stop the police from arresting you. In a DUI stop, the police have the power. They are trained to recognize factors to determine whether there is probable cause for an arrest.
You can protect yourself. There are things that can be done to protect oneself over the long term and, in some cases, make it less likely to be arrested in the first place.
- Robert Bruce
Common factors are bloodshot eyes, the old smell of alcoholic beverages, the being unable to balance for long periods of time or walk in perfectly straight lines. Many of those factors are outside of a person's control and don't conclusively prove that a person is intoxicated. For example, if it's late at night after a workday, almost every adult is going to have bloodshot eyes, or if a person has prior injuries they won't be able to walk in a straight line. All a person can do is accept that the police have the power in a DUI stop.
You can protect yourself. There are things that can be done to protect oneself over the long term and, in some cases, make it less likely to be arrested in the first place. These tips can diminish the likelihood of arrest and make it far likelier the case will be dismissed down the line, and they can also help to make sure a person can keep their jobs and livelihoods intact.
Tip 1. You don't have to do field sobriety tests.
Officer's are changed to "ask" a person to get out of the vehicle to perform tests. They are also trained in maintaining a "command presence" meaning they may "ask" in a way that projects authority and makes it seem more like a command. Sometimes, using techniques honed as part of their non-violent communication training, they will frame the request as an opportunity for you to prove your innocence. Either way, field sobriety tests don't prove innocence any better than just declining to take the tests. Passing the tests with flying colors is the same as not doing any of them - they both don't suggest any evidence of guilt. If you are worried you won't pass for whatever reason, don't do the tests and stick to your guns. Specifically:
Don't do the horizontal gaze nystagmus. If you are worried you won't pass, you shouldn't do the test. This is the test that has a person following a pen or light in the officer's hand with their eyes as it moves up and down and left and right. Don't do the finger dexterity test. That's the test where a person touches their thumb to different fingers and counts out loud. Don't do the walk and turn. This is the test where a person is directed to walk nine steps heel-to-toe with their hands at their side, and then make a multi-step turn with one foot stationary on the ground as the person pivots to return nine steps again. Don't do the preliminary breath test. This is the test where the officer offers a person to blow into a hand-held machine the officer keeps in his patrol car. This test has to be offered by law, but the officer must also advise the detained person of their right to decline the test. You have the right to decline all the tests before arrest! If you think you won't pass, say no to the tests!
Tip 2. You should do the tests after your arrest.
Once the police tell you to put your hands behind your back, you're being arrested for DUI, now's the time to start taking the tests. That test will likely include taking at least a couple of long breaths into a stationary machine kept in a temperature-controlled environment at the police station, although sometimes a blood draw can be required or even requested by the arrested person.
There are two big reasons for complying with tests after the arrest. The first is that there are separate laws that make it a requirement for anyone arrested on probable cause of a DUI to submit to a breath or blood test after their arrest. (See Virginia Code § 18.2-267). Failure to do so can be a separate offense that makes it potentially impossible to get a restricted license for a year or more. Secondly, if the police failed to collect enough evidence of a DUI by the time of the arrest to be considered "probable cause" by a judge, later on, the scientific test will be thrown out as evidence against the accused. An arrested person should start taking the tests after the arrest.
Remember: if you're being asked, you can say no, but if you're in handcuffs, you can say know but you should say yes.
Tip 3. If it's your first DUI, you're going to get a bond.
Nothing is 100% certain, but in all but the most extraordinary DUI cases, the vast majority of people accused of a first-time DUI are going to get a bond set by a magistrate and get out of jail within less than 24 hours. That means even if the police get mad at a person or they don't like how they won't cooperate with field sobriety tests, and then make an arrest anyway, the arrested person is still likely to be going home soon if it's a first-time DUI.
Even if this is a second or third-time DUI charge, there are still positive factors that weigh for a bond, although you may need an attorney to help make arrangements for bond.
Tip 4. Don't drive for seven days.
In Virginia, an arrest for DUI triggers a seven-day administrative license suspension, meaning a person is barred from driving for seven days. The right to drive is restored on the eighth day, and the physical Virginia driver's license can be collected from the local General District Court clerk after that. If an arrested person has an out-of-state license, their card won't be taken, but they won't be allowed to drive in Virginia for those seven days, and depending on their local state's laws, they may also be barred generally.
Tip 5. Get settled in for a marathon and not a sprint.
If you're arrested on a DUI, it's normal to feel panic and despair - what's going to happen to me? Can I keep my license if I need it to work or get my children to doctor's appointments? How can I avoid going to jail? What if I'm not a U.S. citizen? These are normal questions, and there are potential solutions to almost every problem. But none of the bad things or the solutions are going to happen instantly. A typical DUI legal process takes a couple of months and can take longer. Get in contact with an attorney to help you through the process and protect you, concentrating on your highest priorities first.