SEPTEMBER 4, 2010
HAPPY WEEKEND, HAVE A MARVELOUS LABOR DAY. IT IS A FINE DAY TO HAVE OFF.
Since it is a holiday weekend, many of us will be at parties or BBQs. Often when we gather with family and friends, alcohol is available. Please do not over consume alcohol and drive. Drinking and driving is a preventable crime that can have catastrophic consequences to the drunk-driver and his/her family and if an accident is involved, the victim and their families.
A DUI arrest is a serious and expensive proposition. Like any crime, the accused has Constitutional Rights against self-incrimination, right to counsel, and the presumption of innocence. It is important to know your rights. You often hear people say an accused got out of the crime he/she was charged with because of a technicality. In my business, I am a lawyer, what a non-attorney calls a technicality, I call a Constitutional Right. Constitutional Rights always seem more important when these rights belong to you, not just someone you read about.
I do not condone driving while intoxicated or after any significant amount of alcohol. If it does happen and you get stopped by the police, you have rights you should be aware of. The officer that stops you is entitled to your respect and courtesy. The officer also has the obligation to treat you with respect and common courtesy.
Cooperating with arresting police officer in DUI situation
Unfortunately, we find ourselves behind the wheel of a car after a drink or two, three, four or more. I do not condone drinking after driving but it happens, sometimes to good people in a bad or unforeseen situation.
In America, the blood alcohol content to be driving under the influence is .08. It has been lowered a few times over the years but it is now set nationwide at .08. If a person is driving or in control of a vehicle with a BAC at .08 or above, they are guilty of DUI. The State does not have to prove you are driving erratically or poorly. By being over the legal BAC while driving is enough to establish your guilt. This could be on a public road or a public area even if on private property.
If you are pulled over by a police officer, you must cooperate to a point. You must provide him/her with your driver's license and insurance documentation. If you do not have these documents, besides being guilty of other traffic violations, you must give the officer your name, address, social security information and other reasonable biographical information. If in Arizona, all bets are off. They can seek other information. You must provide insurance information if your card is missing or expired. You must also tell the officer if you have minor or handicapped individuals at your home waiting for you who may need care.
You do not have to answer other questions from the officer. Do not be argumentative or an idiot. The officer is doing his/her job. Show him/her respect. The officer owes you the same courtesy and respect. The police arrest people, they are not the Judge and Jury. You do not have to exit the vehicle, unless an accident is involved, until you are under arrest. You do not have to submit to a breath test, portable or at the station, at all. You will lose your driving privileges for a time by refusing the breath test but you will lose your license if you submit to the test and are over the limit. Always refuse to take the portable breath test. Either way, you do not have to take the breath test, non portable, until you have been arrested. You cannot be penalized for refusing to take the breath test until after you have been arrested; therefore taking the test just provides the police with more evidence against you. You will not be unarrested if you take the breath test and your BAC is under .08
The criminal charge of DUI has two distinct parts to it. The criminal charge is prosecuted by the Office of the State’s Attorney. Almost all action against your driver’s license is done by the Secretary of State, with some involvement by the Court. Most action and relief from that action concerning your driving privileges originates with the Secretary of State.
You do not have to answer the "Under the Influence Questionnaire" most police departments use. The police are trained observers. They are taking notes. Every time you open your mouth, evidence is coming out. No matter what you think, you are probably not smarter than the arresting officers, who are trained, working and have not been drinking. The Police Report will quantify the smell of alcohol coming from your breath. Every time you open your mouth the officer is smelling alcohol. It will generally be characterized as “strong odor of alcohol” although I have seen police reports that have stated "moderate odor of alcohol".
The questions, like what day is it?, are often asked right after midnight, when most DUI stops are made. If you don’t catch that your answer will be wrong. Other questions, like, What have you been doing? Where have you been? are designed to get you to say you were drinking in a bar or somewhere else. Questions like, When did you last eat? What did you eat?, are meant to establish you have been drinking without eating. If you answer these questions, you have committed to a story they will not forget. If you have not eaten in four hours but been drinking, it will be brought out that alcohol works quicker and with more punch without food. This will end up being evidence used against you. It is just better to remain silent. Anything you say can and will be used against you. Just politely tell the officer you do not want to answer any more questions and you want to talk to your lawyer. This is especially true if a personal injury accident is involved.
You do not have to perform field sobriety tests, such as the Horizontal Gaze test, tracking an object with your eyes. Do not try these tests. You will likely fail. Rarely does an officer ask a person to perform these tests and then not make an arrest. Do not do the one-leg stand test or the walk-and-turn test. All of these tests are designed to provide evidence against you for trial. Never say something like, “I couldn’t do that if I were sober.” Or “I couldn’t do that if I hadn’t been drinking.” In both of these examples, you just admitted to drinking.
Before you are asked to perform field sobriety tests, you should be asked about any injuries or joint problems you have that make ambulation difficult. If you have any ankle, foot, knee or hip problems, let the officer know about it. Do not try to be to medical in your explanation. A bad knee is good enough. Remember, the less talk, the better. Do not fall for the officer's good guy routine. He/she is there to arrest you not to pray with you.
When you do exit your vehicle, do not use the inside of the car door for support or leverage. In the Police Report it is written down as “Had to use car door to steady self while exiting vehicle.” Do not make jokes or cry. Do not beg to get off. These actions will be written up as “unusual response to situation.” The attempt to talk your way out of the situation implies you are guilty since you need a break.
Cooperate without being too cooperative. The police deal with the public on a daily basis. They do not take it personally if you refuse their requests. Don’t make it personal, it will never help you.
The entire situation from arrest through Court proceedings could last up to two years. You may have to deal with the Secretary of State longer than that. If you have to complete drug and alcohol counseling, that could go on a long time. The cost, when everything is said and done will be between $1,500.00 and $5,000.00. Your lawyer will be paid some of that money but so will the State, the County, Evaluators, treaters, Ignition lock system companies and installers, your insurance company and others. In addition to a fine, the system has numerous costs and fees added on. If you post bond, usually $300.00 of which your valid driver's license will cover $200.00, you immediately lose 10% as a fee. I think this is unconstitutional, punishing you before guilt is established, but the Courts have not sided with my feelings, yet.
“I don’t have hobbies; hobbies cost money. Interests are quite free.”
GEORGE CARLIN
“You can fool some of the people all of the time, and all the people some of the time, but you cannot fool all the people all the time.”
(Attributed to) ABRAHAM LINCOLN
Bruce A. Brennan
brucebrennanlaw.com
brucebrennanlaw@aol.com
bruceabrennananddekalbilandtheworld.blogspot.com
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