DON’T DRIVE if you have had more than two drinks in the hour before you get behind the wheel.  If you consider yourself a “lightweight” or are the “sober driver,” don’t drive if you’ve been drinking at all in the last hour.  Definitely don’t drive if you have exceeded two drinks an hour in the hours before you decide to drive home.  Although alcohol absorption rates may vary due to a person’s weight, sex, and food intake, most people will flush out one drink an hour and three in an hour will put an average person close to or over the .08 mark.  If you cannot keep track of how much you have been drinking, you probably shouldn’t be driving. REMEMBER:  Cab fare is always cheaper than an arrest for DWI, whether you end up with a conviction or not.

DO BE COOPERATIVE. Don’t, however, try to chat it up with the officer.  Give the officer your driver’s license and insurance card and keep your mouth shut and give him only the information he asks for.  Contrary to popular belief, things you say prior to being Mirandized and placed under arrest can be used as evidence against you. Once you have been detained longer than it takes to check your driving status and write a ticket–in other words, the officer asks you to do field sobriety tests (HGN–the eye test, walk and turn, one-leg stand), including blowing into a portable breathalyser–you should consider yourself “in custody.”  That means you may exercise your right to remain silent under Miranda and you should tell the officer that you are doing so when he asks you why you are so quiet.  He’ll tell you that you aren’t under arrest, but you are not free to leave, so you are technically under arrest, BUT

DON’T ARGUE WITH THE COP. To reiterate, keep your mouth shut! ‘Nuff said.

IF YOU HAVE NO PRIOR DWIs, it is usually best do the field sobriety tests and consent to a breath, or other chemical test.  As much as we lawyers hate to advise anyone to risk a DWI arrest and conviction, in Missouri if you refuse to submit to chemical testing you are subject to a one-year suspension of your driving privilege, whether you are over the limit or not.  Once you say no when the officer asks you to do the breath test, he will consider it a refusal and typically, you won’t be given a second chance.  If you do not give an adequate sample–i.e., you don’t blow hard enough–this will also be considered a refusal. If there is some medical reason why you can’t give a breath sample, you may or may not be asked to submit to blood testing.  See FAQ regarding refusals.

PAY ATTENTION TO THE INSTRUCTIONS ON THE FIELD SOBRIETY TESTS and don’t start doing the test until the officer tells you to start.  Fails to follow instructions and starts the test before being asked are two of the the clues of intoxication according the the NHTSA Manual.  As for doing the tests, just follow the instructions and don’t ask for do-overs.  “Results” of the field sobriety tests can be challenged in court.

IF YOU HAVE ONE OR MORE PRIOR DWIs,  a new conviction will result in a revocation of your driving privilege for one, five, or ten years, so the general advice is to  not do the field sobriety tests, blow, or consent to a blood test.  It is likely that if you have a prior DWI, a warrant will be requested for a blood sample and you will not have a choice about this.

Again, the most important rule in this situation is be polite and say as little as possible.  Do stop yourself from trying to convince the cop that you aren’t drunk.  No matter what you say to the officer, your statements will not sway him and you may talk yourself into an arrest rather than out of one.

The Missouri Department of Revenue, the state agency that issues your driver’s license and controls your driving privilege in Missouri, maintains an electronic record system. Any activity that has an impact on your driving privilege will show up your Missouri driving record. These include all moving violations, points, DWIs, suspensions, reinstatements, etc. Your record will also contain information about any moving violations you received in another state. Keep this in mind when driving out of state because if you receive a ticket for a moving violation in another state and just pay it, Missouri will treat that ticket as if it happened in Missouri and assess points accordingly. This why you should contact a lawyer in the state you received the ticket if you would like to keep your Missouri record clean.

A lot of people believe that driving records only go back three years or that the record is wiped clean after that period. Not true. The three-year mark is significant for a few reasons, one of which is that any points assessed against your license will cycle off after a three years of safe driving (that means no moving violations). Some insurance companies will only consider the last three years when determining whether to issue a policy or to raise or lower your premium. I once had a client who insisted that his record was clean, but a record check showed that he had been suspended in 1998 for numerous moving violations and had not reinstated his Missouri license until 2007. He was correct that it was clean since 2007. However, his driving history affected how the prosecutor viewed his latest moving violation. Keeping a clean driving record means that your lawyer is better able to get any moving violation you do receive amended to a non-moving, non-point violation.

WHAT IS NOT ON YOUR DRIVING RECORD: Parking tickets, non-moving violations such as “defective equipment” (moving violations are often amended to this charge), infractions, expired plates, seatbelt violations. In Missouri speeding of 5 mph or less over the speed limit is a non-moving violation.  However, if you have an out-of-state license, your state may not treat this as a non-moving violation, so make sure you and your lawyer know how these tickets will be treated in your home state before you go forward with an amendment to a 4- or 5-over speeding.