There are several things you should know about every part of a DUI traffic stop. Keep in mind that there are 2 parts to every DUI case: the criminal charges to be heard in the District Court and the MVA hearing, which is optional, but which affords you the opportunity to keep your driver license.

Here are some pointers:

  1. When the officer approaches your vehicle, the first thing he’ll ask you is whether you’ve had something to drink. The only reason he is asking that question is so that he can record your answer in the police report so that he can tell the Judge later that you admitted to drinking and it give him all the more reason to ask you to exit the vehicle and perform field sobriety tests.  So when you’re asked the question, just be very courteous and polite, and say that you would like to be able to speak to your attorney before asking any questions.  If you’d rather not say that, you may just want to remain silent.
  2. If you do or don’t admit to drinking, chances are that the officer will claim that you have an odor of alcohol about your body, and will ask you to exit your vehicle and submit to field sobriety tests. The officer will record the results and you will not have an opportunity to give your opinion about how well you performed. If you have any kind of physical limitation that would affect your ability to balance, just tell the officer. You may have had hip surgery, or problems with your feet, or you may be taking medication that affects your ability to balance. Even if you say this to the officer, he’ll likely tell you that he’s noted it on the report, but will still want you to take the test. You should consider stating, very politely, that you must respectfully refuse to take the field sobriety tests, not because you’re in any way drunk, but only because you know you can’t pass only due to physical limitations due to the disabilities or medications I mentioned earlier. By not admitting to the drinking and not taking the field sobriety tests, the prosecutor will be at a huge disadvantage at trial because there will be limited proof of intoxication.
  3. If you refuse the field sobriety tests, the officer will probably arrest you anyway. But his proof against you will be very limited. In some cases, the police vehicle is equipped with a video camera, and that can sometimes be used to show that your speech was not slurred and your balance was fine. Ultimately that could help lead to an acquittal in court.
  4. If the officer asks you to take a preliminary breath test, you are not required to take that test; and even if you do take the test in the field, the result is not admissible in court.
  5. The officer may arrest you, and if he does so, you’ll be taken to the police station where the officer will ask you to take the final breath test. The officer is required to read to you, or allow you to read from a form called the DR-15, Advice of Rights. This form gives you the consequences of not taking the final breath test at the station, and how that will affect whether you will keep your driver license. It is very important at this stage, and at every stage through the process, that you repeat to the officer that you want to consult an attorney before making a decision. There is actually some recent case law that states that you do not have the right to have an attorney consultation at this stage, but the officer’s lack of cooperation could result in a finding in your favor. He should not interfere with your attempt to consult with your attorney.


Everyone asks me whether they should take the breath test. Your decision on this will affect you at the District Court trial on the issue of guilt or innocence; and it will affect you at the MVA hearing which you can schedule to determine whether your license will be suspended.

Well, if you’ve only had one glass of wine or one beer, you’re probably safe in taking the breath test, and that could lead to the officer releasing you from custody. It could also lead to a “Not Guilty” in court. But if you’ve had more than one to drink, the likelihood is that you’ll blow over the limit of .08, and that will definitely lead to a conviction in court. Your refusal to take the test could result in the suspension of your license, but in almost all cases, you will either be eligible for a work-restricted license, or you can have an ignition interlock, added on the steering column of your vehicle, for 1 year, in which case you can drive without restriction.

If you didn’t admit to drinking; and if the officer has no negative field sobriety test and no breath test result, the prosecutor will have a very weak case.



Regretfully, there are some lawyers who typically plead guilty in most cases and try and get a “PBJ” in the case. That’s probation before judgment. Even though it carries no points, it cannot be expunged from your records, and the insurance companies can see that information on public record. If you have a solid defense, you need a lawyer who will try the case and try for a “Not Guilty”.

I’ve tried many cases over the years. If you have a good defense, we should take advantage of that; otherwise, I’ll negotiate the best deal possible for you.



I believe that personalized representation is essential to helping clients successfully navigate their cases. For that reason, I want to provide you with the time and attention you deserve. I offer my clients an aggressive and effective approach to DUI defense. Call now!

Just give me a call on my cell phone, 410-653-8866, anytime! I hope I answered most of your questions.

– Mark A. Epstein