(Hint….The same answer applies to the best way to win a fight.)

Sun Tzu was a brilliant but ruthless military strategist.  He once demonstrated a tactic by using the Emperor’s courtesans in lieu of soldiers.  The maneuver was held in the throne room. When the ladies, giggled & stepped out of turn, ill at ease with switching from concubines to pretend soldiers, Sun Tzu had one (the Emperor’s favorite) beheaded.  The next attempt at the drill went smoothly.  Hence, the “ruthless” label.

While his teaching methods left a lot to be desired, his lessons have become famous.  He taught the greatest victory is one which requires no battle.  Put another way, the victory is in avoiding the conflict.  A fight, a DWI arrest….it is the same.  Don’t be there for it.

How do you avoid the DWI when you are out for dinner or at a bar with your friends?  It usually goes the same way.  You have a few, but you feel fine.  You get in your car after midnight to go home and arrive safely.  But this time is different.  Though your driving is almost flawless, you forget to signal in time (see last blog post). There is an odor of an alcoholic beverage about your person and your eyes are a bit bloodshot (it is late and you are tired). The officer asks you to step out of the car to perform Field Sobriety Tests (FSTs).

This is where things really go badly.  You are not legally obligated to take the FSTs, but the officer doesn’t mention this fact (note:  your refusal to take FSTs might be introduced as evidence against you at trial).  The officer also doesn’t tell you about the study in which 46% of the participants couldn’t pass the FSTs with a .00 BAC…stone cold sober.

On the side of a road in the middle of the night, nervous, trying to perform physical feats you have never attempted, you wonder what they have do to with your ability to drive.  While you aren’t sure of the nasty results connected with failing, it is a good bet the stakes are high.

The odor coming from you was the result of  beer consumed over a 3 hour period.  If you had 3 beers and weigh 170 pounds, your BAC (blood alcohol content) is a bit more than .02.  Make it 4 and the BAC goes up to .035.  If it was 5 beers, or if a shot was added, or if the time frame is a bit shorter,  you are over .05 which is DWAI land. At lower than .05, you are  likely not impaired (usually defined as .05 to .079) or intoxicated (.08 and above).  Even so, this is a bad time to find you are in the nearly half of the population who can’t perform the FSTs sober.

The hand-held alco-sensor the police have you blow into at the scene of the stop is not reliable for determining BAC, but it can and does reveal the presence of alcohol.  Refusal of this test will result in a ticket. You are cuffed and arrested.

As you are transported to the police station, your mind is assaulted by questions:  Will my spouse kill me?  Do I take the breath test at the station? Will I lose my job?  Will my spouse kill me (it deserves multiple mentions)?  Will this make the papers?

The question which should have been asked at the beginning of the evening was what would Sun Tzu do?  Yes, of course he would have had the Emperor intercede and make it all go away once he was arrested, but this option is not open to you.  The right one was previously mentioned:  win without fighting. But this option was only open at the beginning of the night, not after the arrest.

To make sure this option is always open to you,  pretend you are under 21 when it comes to drinking and driving.  NY State has the “zero tolerance” rule (Vehicle & Traffic Law § 1192-a).  If under 21, it is illegal to have .02 BAC and drive (http://www.safeny.ny.gov/zero-tol.htm).  The small amount of .02 is allowed if the alcohol came from medicine.

After “zero tolerance” became law on November 1, 1996, teen drinking and driving case began to decrease (http://www.nhtsa.gov/people/injury/research/FewerYoungDrivers/iv__what_caused.htm).  Lives were saved.

So why don’t we expand “zero tolerance” to all ages?  The taxi companies and hotels would love it.  There is no cab ride or hotel room which will cost you anything near what attorney’s fees, court fines, DMV charges and insurance increases will.  But the liquor industry, restaurants and bars oppose “zero tolerance” for adults, even though it has already been shown to save lives.  Money talks.

I have had many clients get arrested after they thought they had properly calculated what their BAC should be.  Alcohol consumption diminished their cognitive abilities, they were wrong, and they were arrested for DWI.  There is nothing to calculate if you don’t drink before getting behind the wheel.

You could observe that by writing this I am acting against my own financial interests.  You would be right.   I hope this gives my words more credibility with you.  I don’t mind if the number of my DWI clients decreases because you read and remember this.   I  love practicing criminal defense law.  This doesn’t mean I love people getting jammed up by being charged with crimes, justifiably or not.  I recognize the harm which flows from DWIs, most often after otherwise good people have made the mistake of getting behind the wheel when they should not have.

If  Sun Tzu doesn’t resonate with you, if you get arrested for DWI, DWAI, or any other alcohol/drug related driving offense, I will fight for you with zeal and determination.  That’s my job.  In the bigger picture, as a defense attorney I am protecting our Constitution and the rule of law.

An ounce of prevention is worth a pound of cure in law just as in medicine.  I can’t charge anyone for the prevention, but I am fine with that.   Safe travels.


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