As a DUI lawyer with over 3 decades of experience, it is well known that motorists who have been pulled over after having drank way too many beers when asked by the police officer how many beers they have had that night will regularly respond by lying and saying “Two beers.” This is so common, I often hear judges laugh and say, “That’s what everyone says.” The thought process of the motorist is apparently that the officer can smell the odor of alcohol and by saying they only drank 2 beers that they are not admitting to any criminal behavior; they have not admitted to drinking enough to be intoxicated. The problem is that the officer and the judge basically treat this merely as an admission that the person has been drinking that night. It is never a good idea to lie to a law enforcement officer ever. The proper response if one thinks there is any chance that they are a .08 BAC or higher is to state, “I’m not going to answer any questions without a lawyer.” There is no penalty for asserting your right to counsel and your right to remain silent. Furthermore, there is no penalty for refusing to do any of the so-called Field Sobriety Tests or the Preliminary Breath Test at the scene.

Lie #1: I have not had anything to drink since driving

            There are 2 other common lies that motorists tell the police that actually HURT their defense. The first occurs often in a single car accident case. Often, by the time the police arrive, the driver is out of the vehicle and often has gone home before the police arrive. The police will typically ask whether the person has had anything to drink since the accident. Even when the motorist has had something to drink, they regularly respond that they have not had anything to drink since the accident. If they told the truth, then the judge could give virtually no weight to any observations by the police officer and to any subsequent breath or blood test. The rationale behind saying that they had not been drinking when they had is that the person wants to convince the officer that they are presently sober and thus they can’t be charged with an offense like Drunk in Public.

Lie #2: It has been several hours since my last drink

            The other lie I see even more frequently is when the officer asks the motorist when they consumed their last drink. Again, mistakenly believing that this statement will convince the officer that they are presently sober ant that the officer will then conclude their investigation, they often say it has been several hours since their last drink. So when the BAC comes back and it is well over the legal limit, the defendant is basically stating that they were irresponsible enough to drive, drink way too much, but prudently stopped drinking for several hours earlier as they stayed at the bar until closing time. The reality is that very often a bar is closing and the patrons will be told to finish their drinks and go home and the person will chug whatever amount of beer is left in their bottle or glass at that time. Another worse scenario is that they or a companion will decide to have “one for the road” and they will do a shot of liquor or chug an entire drink as they are heading out to drive home. Scientifically, if someone who has not been drinking chugs an alcoholic drink, while that drink is still in their stomach, their BAC is and will remain at 0.0 until the alcohol is digested and absorbed into their blood stream. Thus, the person who lies and says that it has been hours since their last drinking is stating that their last drink has been fully absorbed into their body and, therefore, their BAC was heading lower from the time they were driving until they took a blood or breath test. In fact, if the person had been drinking right up to the point where they left the bar, then their BAC is on the rise from the time that they were pulled over to the time when their BAC was tested after arrest. In this scenario, their BAC when stopped would be LOWER than their BAC at the police station or hospital.

Bob Battle
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100% of my practice is devoted to serious traffic defense and criminal litigation in state and federal courts
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