
Transgender Legal Advisor
Dressing, Drinking and Driving
By Carolyn Woodward
Got a legal question? Having some problems with the law? TG Attorney Carolyn Woodward will try and answer your questions. Contact her via Email at carolynWWD@aol.com or message publisher Cindy Martin and we'll make sure she gets your question.
The topic is drunk driving, and this is part II of a 2 part article. If you missed last month's article, I would recommend you read it now. Click Here
"Know Why I Stopped You?"
Ready to continue? OK. You're driving along, alone or with friends still
in the car, and you see that sight we all dread - red and blue lights in
the rear view mirror. It's the cops and they want to talk to you.
Promptly pull over, turn off the engine, and then place, and keep, your
hands on the wheel. This will help reassure the officer that you are not
going to pull a gun. The officer will approach, either from the passenger
side, or the driver's side and may hit you with that famous, and stupid,
question, "Do you know why I stopped you?" First, don't give the answer I
always want to give, which is, "Why, don't you know?" Don't suggest any
reasons either - particularly nothing like, "I was weaving?" A polite
"no" should be your answer. Make him tell you.
You Have The Right To Remain Silent
Engrave this inside the top of your skull, and refer to it: "YOU HAVE THE RIGHT TO REMAIN
SILENT." You are obligated to give the cop license, registration, and in
some states your proof of insurance. You don't have to answer questions,
even at this point. This may make the cop turn a bit belligerent, but may
keep you out of trouble, too. He is questioning you to gather evidence
against you, and he does NOT have to read you your rights until such time
as he arrests you, and not even then if he doesn't care to ask any
questions of you. Oh, and a bit of soap box here - be sure to give your
real license. If it has a male name and sex designation, so be it. If
the officer gives you a hard time about being dressed, ignore it - you
have the right to be cross-dressed. That is NOT the issue unless you end
up in jail, but more on that later.
Now, to the specifics. He will tell you why you were stopped - if he says
outright it is for DUI, or asks if you have been drinking, then you have
some decisions to make. First, were you drinking at all? If not, then
answer his questions. It will get you back on the road faster. If you
have been drinking, then you might think about declining to answer his
questions. If you have had one or two drinks you probably can't hurt
yourself by stating so since that is not usually enough to matter. If you
have had more, then seriously consider politely declining to answer
questions. You will probably hurt yourself when it is time to deal with
the matter later.
Now, some of you are probably asking yourself how the officer knows you
have been drinking - especially if you get stopped for a tail light, or
speeding. They are trained to look for certain things associated with
alcohol consumption. The first is an odor of alcohol. This is caused by
the metabolic byproducts of alcohol "burn-off" and are eliminated, in
part, through the lungs and can be smelled on the breath. When the
officer approaches the car and smells this, he will assume someone has
been drinking. If you are alone, he will assume it is you. If you have
passengers, you will probably be asked to exit the car, and the officer
will get in your face - somewhat literally, to see if he can smell alcohol
on your breath. One drink will produce this odor, so it doesn't give the
officer anything to work with other than the fact that you probably
consumed alcohol. (Yes, some medical conditions, such as ketosis, can
mimic the odor.) He will also look for bloodshot eyes. While a thousand
other things cause bloodshot eyes, so will alcohol. The two together will
make the officer suspect that it is, in fact, alcohol. The officer will
also look for speech difficulties - particularly slurring, as well as any
unsteadiness in your walk.
If these things are found, then you will be asked to do field sobriety
tests. In some states you can refuse to do these, but I won't say that is
true for all states as I don't know. In California the law doesn't say you
must, so you can refuse. (The exception is the Preliminary Alcohol Screen
- a portable breathalyzer - which Ca. law specifically states you have a
right to refuse if you are 21 or over.) Whether you should refuse, if
legally able to do so, should be carefully considered. Refusal to comply
can be argued in court, if it gets that far, as consciousness of guilt.
You knew you would fail the tests because you were drunk, and so you
refused - that sort of thing. If refusal is not an option by law, then
there will be other consequences. Will you pass them? Let me just say
that any defect in your performance will be noted in a negative manner -
never mind you may never have done that particular test before.
Testing Procedures
What do they use for tests? Well, the latest and greatest is the Alcohol
Gaze Nystagmus, or Horizontal Gaze Nystagmus test. Follow the pen, or
whatever, with your eyes only. If they fail to track smoothly, and there
are small, jerky movements back and forth, it is another indicator of
alcohol consumption. Other things can also cause this, so it is
considered in combination with the other tests. Many law enforcement
agencies also have a portable breathalyzer they use. This is known as a
Preliminary Alcohol Screen in California. Otherwise, you will be subject
to balance and coordination tests. Now, assuming you are wearing heels,
you have to decide whether to leave them on or not. Do whichever will
work best for you. Personally, I would do better in heels than bare feet
on gravel and would do that (I have tender feet). Don't, however, do it
in heels and use that as an excuse later on - the officer will point out
that you were welcome to remove them. Also, you can probably keep the
fact of being cross-dressed from a jury as it is prejudicial and not
relevant - unless you use the high heels excuse for poor balance. Then
you've opened it up. So, seriously, do what works best.
Now, unless you have done so well on your field sobriety tests that there
is no question that you are OK to drive and definitely under the limit,
you will probably be arrested. You will be asked at this point to take a
further chemical test for blood alcohool. I believe that in all states
you have a choice of breath or blood tests, and some also have urine tests
as a third option. (California is among these.) Which one do you take?
That's a tough question for the most part, so let's start with the easy
one. If you are truly over the line and know it, you might opt for the
urine test if it is available. This is because it is the most unreliable
of the tests - the reason many states dropped it. That's not because the
alcohol can't be reliably measured - it can. It is because blood and
urine alcohol are not going to be the same, and the difference varies
widely, resulting in an unreliable conversion from the urine alcohol level
to the blood alcohol level. It also gives you a sample you can have
independently tested.
Next in accuracy is the breath test. The machine reads the alcohol level
in a given volume of air, which is supposed to alveolar, or from deep in
the lungs, which is converted to blood alcohol equivalents. It is a more
accurate conversion, mostly, than urine, but it will still read slightly
higher than actual blood alcohol in about 25% of cases. This is also the
test usually pushed by the police because it is the easiest for them to do
and gives an immediate read-out. You blow into the tube and there it is.
Usually the machine will read an air blank to be sure it has no alcohol
left in the chamber, then you blow a sample, it does another blank, you
blow, and it does another blank. This may vary from jurisdiction. In
California, that is a requirement for a valid test.
Another necessity is
a fifteen minute observation period. That means a continuous observation
period. This is stated as necessary in the operator's manual for the
Intoxilyzer 5000, the most popular model in California. California has
made that observation part of the required procedure. The reason is that
burping or regurgitation can cause alcohol to come up from the stomach and
contaminate the test. Some models of breathlyzer have detectors for this,
but they don't work that well. You will seldom be watched for fifteen
minutes continuously. Usually the person is put in the back of the car,
then taken immediately to the machine. This can be used to challenge the
test. Usually, it will not cause it to be thrown out, but can affect the
weight a jury gives to the test. Some foreign substances in the mouth can
also cause inaccurate readings. The machines do not keep breath samples
for further anlysis. If you take a breath test you may be permitted by
state law to have a blood or urine sample taken as well for independent
analysis by a lab of your choice. Keep in mind, however, that the police
will usually request their own analysis of that sample as well.
The most accurate is the blood test, and the one to use if you are quite
sure you are under the limit, but the officer arrested you anyway. (It
happens all the time.) It is most accurate because there is no conversion.
The blood alcohol level is analyzed directly.
Now, I know of no state which permits you to refuse to take one of these
tests. You must take one, or you will be hit with other consequences.
First, if your matter goes to trial, this refusal can also be used as
evidence that you knew you would test over the limit - and it is a
powerful argument.
In most states, California among them, you will also
face an administrative drivers license suspension for a refusal to take a
blood, breath, or urine test. Also, if you are in California and you blow
into the hand-held breathalyzer in the field, that is one of the field
sobriety tests and DOES NOT count as a breath test for purposes of the
implied consent statute which mandates one of the three tests. Don't
assume because you blew into this at the roadside that you did your test.
You did not, this is the Preliminary Alcohol Screen, and the officer is
supposed to tell you this at the same time he is supposed to tell you of
your right to refuse it.
How's Your Makeup?
You've taken your test. Now what? It depends on the officer's attitude,
the level of intoxication, and whether someone can come get you
immediately. The officer may let you go if you test out at a low level
and he feels you can drive after all. If you test at or above the legal
limit it may be that you could be released to a spouse. Or, you could end
up waiting behind bars until you bail out or get taken before the court.
In any case you will be photographed and fingerprinted - usually at the
jail where some of you potential cell-mates can see you. How's your
make-up? That photo will be in the records forever, so you should be at
your best. "But," you say, "I have a change of clothes in the trunk and I
can get my make-up off in two seconds flat. Can't I change before we get
to the jail?" Ask, of course, but I've never seen an officer willing to
agree to that. First, who knows what else you may have in the trunk - a
weapon perhaps? Police officers are paranoid - and for good reason. Lots
of them get shot every year. Secondly, taking you to jail in drag is just
too much fun. Helps to break the monotony of yet another graveyard shift.
Face it, you are going to be humiliated, and you can't do a thing about
it. Do, however, ask to be segregated. If your request is denied and you
are placed in the general population you may have grounds for a lawsuit
later if the other inmates do anything to you because of your manner of
dress.
Finally, after you get out, consult a lawyer. I reiterate what I said
last month, this is a complex area of law, and not for the
do-it-yourselfer. Of course, the better course is to watch your alcohol
intake, appoint a designated driver who is to drink NO alcohol at all, and
who will get you to your home or motel - not back to your car. Have fun,
but don't take foolish chances.
(Please take notice that this article is intended for general educational
purposes and is not intended as specific legal advice. Remember, the laws
differ from state to state. As always, I recommend consultation with a
licensed attorney in your state for answers to specific questions and
concerns.)
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