The short answer to this question (if there is such a thing) is that you don’t, at least at the stop. If an officer suspects you of Driving Under the Influence at the scene of a stop, unless you do remarkably well on your Field Sobriety Exercises , you are likely going to be spending a night in Officer Friendly’s finest accommodations. What you can do at the scene is mitigate your damages for later. I have in the past and continue to advise that when the officer cordially invites you to participate in his so called “standardized” Field Sobriety Exercises one should very respectfully reply, “With all due respect officer, I will participate in any exercise you ask of me, so long as my attorney is present. I am not an attorney or someone familiar with the law and I would just like to be on even ground.” It is important to know that you will be taking a ride with him for saying this, but you likely were anyway. Upon your arrival at the jail, he will then read you what is called “implied consent,” and request either breath, urine, or blood under certain circumstances. Again, your response should be, “I will be happy to take your test Officer, so long as I can have an attorney present.”
If you do as I’ve mentioned in this post you should know that you will spend the night in jail and you will be initially charged with DUI. You should also know the State will attempt to use your lack of participation in Field Sobriety Exercises and lack of participation with the breath, urine, or blood test as a refusal against you. Finally, by not taking a breath, urine, or blood test your initial license suspension with the DHSMV will be 90 days as opposed to 30 days had you participated, and a year as opposed to six months via Florida statute on a first time DUI. Right now you’re probably thinking I’m crazy and a terrible attorney. The method to my madness is that DUI is a big picture charge. By requesting a Tampa DUI attorney, the State cannot legitimately use this against you at trial. Juries do not want to hear that someone was willing to fully participate with an Officer, so long as they could be educated about his request first. Rationally speaking, there is no refusal, only a request for an attorney to stand by as you perform the Officer’s request. Despite what I say, you will be afforded no attorney at this point, as caselaw holds there is not yet a right to an attorney at this stage of your detainment. Again, Juries will likely not want to hear this. From the outset, giving as little evidence to the State as possible can only help your case.
In my time as a Prosecutor and a Criminal Defense attorney in Florida, I have heard of very few instances where an officer detains a driver, and then lets them go after they successfully complete Field Sobriety Exercises. Speak to nearly any DUI attorney and they will tell you that Field Sobriety Exercises are exercises using unnatural movement, built to “test” natural motor skills. The long and short of it is that most simply can’t complete Field Sobriety Exercises, impaired or not, so why supply the State with evidence to convict.
Whether you buy into my theory is up to you. All this really does is act to aid your prospective attorney to build you a defense at trial or provides ammunition to lobby for a reduced charge. One should know that in Florida, a second time refusal of a chemical test is a criminal offense, so be cognizant of this as you enter the breath test room. This is not a sure shot ticket to having your charge dropped, reduced, or won at trial. In fact, given certain circumstances, you still could be convicted of a DUI. This theory is merely a method to give your attorney a shot and “put him on even ground” so to say. Good luck!