A CITIZEN'S GUIDE TO KNOWING THE DWI LAWS AND YOUR RIGHTS
III. O.K. WHAT IF I'M STOPPED FOR DWI? WHAT ADVICE DO YOU HAVE FOR ME AS A LAWYER?
- Think first, use common sense, and be open minded !
- What do I do if the officer signals me to stop by turning on his emergency lights ?
- Having drawn the black bean by being stopped, should I get out of the car ?
- Is there anything I should do before getting out of my vehicle ?
- If asked, should I admit to drinking an alcoholic beverage ?
- Do I admit to how many, where and when? Is honesty the best policy ?
- If I'm not going to answer, what do I do ?
- If I'm arrested and transported to the police station, do I perform the sobriety exercises before a video camera recorder, submit to the Intoxilyzer test and answer questions concerning drinking ?
1. Think first, use common sense, and be open minded !
First, don't drink alcohol or use drugs and then drive! No one likes drunk drivers as they are clearly a danger to themselves and others. No sane person would be happy to be on the receiving end of a 3,500 pound projectile being piloted by an intoxicated person.
Second, recognize that police officers perform a very difficult and dangerous job, and that we all owe the good officers an extreme debt of gratitude for their efforts. However, it should be remembered that police officers have a great deal of discretion in deciding to arrest a person. Here, it is appropriate to note that experience has proved, time and time again, that a person's lack of manners and overt rudeness is the quickest way to being handcuffed and placed in the back seat of a patrol car. You should also recognize the reality that DWI, for purposes of an officer making an arrest, is strictly his opinion that the crime has been committed. Like all jobs that human beings perform, there will be some officers that are better at it than others. Accordingly, police are not only subject to making human mistakes, but also, to unconscious psychological influences which almost always gravitate toward guilt.
It must also be noted that police work is very competitive, and as a result, officers like to win their cases. Here, too, experience has shown that more than a few officers have misrepresented facts and told falsehoods to win their case. One should keep an open mind as to the possibility of other motivations of the officer than simply that the driver was intoxicated in determining the reason for a DWI arrest. For example, recent evidence has demonstrated that most officers who make numerous traffic and DWI arrests actually receive increased pay as a result of their subsequent court appearances for those arrests. Indeed, in some cases the officer, in addition to receiving benefits of a private patrol car for his use only, and having his days off and work hours fixed, receives an amount of extra money equal to his regular pay for court appearances, i.e., his salary doubles.
2. What do I do if the officer signals me to stop by turning on his emergency lights ?
Drive to the right lane as cautiously and quickly as possible, and continue there until you can either safely park on the shoulder of the road or in a parking lot. Next, take your vehicle out of gear, shut off the engine and radio, and turn on your emergency flashers. Such quick and cautious actions on your part will indicate that your normal mental faculties are not impaired. In addition, if the officer just wants to pass your vehicle, then your actions will allow him to do that in a safe manner.
3. Having drawn the black bean by being stopped, should I get out of the car ?
Yes! However, attempt to keep your hands visible and do not make quick movements. Do not place your hands in your pockets. Exit your car and walk to the right rear of your vehicle and wait for the officer. Do not lean on your vehicle or stand between it and the police car. Here, it must be understood that the officer does not know you or your intentions yet. This is an extremely critical time for him, as he will be looking for a possible weapon you may have or for any threat to his safety that you may present. Recognizing the officer's initial apprehension and the ease at which it may be lessened, you can establish an initial positive contact with him, rather than a negative one.
4. Is there anything I should do before getting out of my vehicle ?
Yes, take your driver's license and proof of insurance card out of your wallet and bring them with you to give to the officer. These two items will usually be the first things he will ask to see. If you were to hand your wallet to the officer, with the license and insurance card in it, he would not take it for fear of being accused of removing money or something else of value. Accordingly, since he would then ask you to remove the license and insurance card from it, you should do that before leaving your vehicle. These actions will demonstrate your cooperation and will lessen the officer's fear factor as your hands will always be visible to him. These actions will also evidence that you have not lost the normal use of your mental faculties, as the actions were both reasonable and prudent.
5. If asked, should I admit to drinking an alcoholic beverage?
This is a tough question but the answer is generally "yes". Since you will likely have an odor of an alcoholic beverage on your breath, it makes no sense to deny that you have had a drink. In fact, with the odor of an alcoholic beverage present and you making a denial, it is only human nature for the officer to find that you are less than credible. This fact to the officer would then likely give rise to a suspicion that you are trying to hide the fact that many drinks were consumed.
6. Do I admit to how many, where and when? Is honesty the best policy ?
It depends. Any admission more than "two" will likely result in your arrest. This is especially true where the officer fails to ask "when?" because, for example, 4 beers is much different than 4 beers over eight hours.
As to the second and third questions, it is not whether you tell the truth or fudge on the truth that is important. Rather, the answer really lies in whether or not you tell the truth or don't answer at all. In this regard, the truth has resulted in many non-intoxicated drivers being arrested, and has subsequently cost them a small fortune for bond, automobile towing, time off from work and an attorney to prove their innocence.
7. If I'm not going to answer, what do I do ?
Keep in mind that both our Federal and State Constitutions guarantee that you do not have to incriminate yourself. Politely ask the officer why he stopped you and if you are presently under arrest. Under our law a person can be under arrest and yet not be told so.
Where the officer indicates that you are under arrest then you should immediately inform him of your desire to have an attorney present for any further questions. Do not refuse or agree to perform police field sobriety exercises. Rather, tell the officer you want advice from a lawyer to help you decide if you will refuse or agree to perform them.
On the other hand, should the officer say you are not under arrest, then a different approach is in order. Politely ask: "Am I going to be written a traffic ticket?" And if so, "Will I be free to leave upon your completion of it?" Where the officer says: "Yes" to both questions, count your blessings, remain still and non threatening. Be courteous and only speak when spoken to - never volunteer information as that will only serve to prolong your roadside stay. Should he again ask about alcohol consumption, inform him of your choice not to answer any questions but those related to the specific traffic offense -- and, stick to your right not to incriminate yourself.
Well, what about a scenario where the officer says: "You're not under arrest, but you can not leave". This is close to the typical DWI scenario. Here, the safe thing to do is to inform the officer that you would prefer not to answer any more questions and would like to have a lawyer present. Be polite and not talkative! Doing this, you have in effect "punted the ball" to the officer. He must now choose to let you go or to prolong his investigation. Again, if he lets you go, count your blessings and drive safely. Where he prolongs your roadside stay, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. The invocation of your rights to remain silent and to an attorney's presence will make it more difficult for the officer to avoid violating your constitutional right to not be unreasonably seized.
To further explain, a police officer, absent any belief that criminal activity is afoot, has a right to walk up to any person in a public place and talk to them. However, the person may simply walk away. Indeed, our law is clear that the person's action in walking away cannot be used as evidence that he is guilty of something, i.e., that the invocation of a constitutional right cannot be equated to guilt. In such cases where the officer, through use of his police status, either impliedly or expressly detains the person, he violates the individual's right not to be unreasonably seized.
To lawfully justify a brief detention of a person, the officer must have a specific and articulate reasonable suspicion that the person is presently involved in criminal activity. This justification cannot be legally made on the basis of a simple hunch or a gut feeling. The detention must be narrowly limited in both its duration and scope so as to allow the officer to maintain the status quo so that he may dispel or affirm his reasonable suspicions. If the officer waits to long or unreasonably proceeds beyond the purpose for his initial detention, then he again violates the person's constitutional right not to be unreasonably seized.
Lastly, where the officer actually arrests the person he must have a greater quantum of evidence than merely a reasonable and articulate suspicion. Indeed, he must have what is constitutionally termed "probable cause" to believe a crime has occurred. "Probable cause" has been defined by our courts as a measure of evidence that would lead a reasonable person, based on that person's experience and training, to believe that a crime has occurred. This probable cause measure requires a lesser quantum of evidence than is required to convict a person of a crime (proof beyond a reasonable doubt) or to win a civil lawsuit (preponderance of the evidence [i.e., 51%]).
In any situation where an officer "detains" a person on less evidence than "a reasonable and articulate suspicion" or "arrests" a person on less evidence than "probable cause", he violates that person's constitutional rights not to be unreasonably seized. The remedy for this violation is to exclude from the prosecution's case any and all evidence that was derived from the violation.
Accordingly, when you find yourself in the typical DWI scenario (i.e., where you're being detained for a DWI investigation but you're not yet arrested) it is best to be polite, to invoke your rights to remain silent, and to have an attorney present, to not accidentally incriminate or convict yourself, and to let the officer do the best he can with the evidence he can legally develop.
8. If I'm arrested and transported to the police station, do I perform the sobriety exercises before a video camera recorder, submit to the Intoxilyzer test and answer questions concerning drinking ?
Maybe, never and maybe! First, however, immediately inform the officer, and all officers thereafter, that you want to remain silent until such time as you can contact an attorney and have a private consultation with him as to anything and everything the officer will ask you except for bail. Be careful to tell the officers that you are neither refusing nor agreeing to cooperate with them. Rather, tell them that your decision to refuse or agree will be premised upon the advice you receive from your lawyer.
Sometimes officers will say "you can't have a lawyer yet". This often occurs at the alcohol concentration test request and the video exercise test request stage. The "you can't have a lawyer" statement may or may not be true depending on the circumstances of your case. But, you will have no way of verifying its truth until you speak to your lawyer. Thus, the best thing to do is to remain polite but firm in your requests to speak to an attorney. Simply put, do not take "no" for an answer.
When the police allow you the opportunity to use the telephone immediately use it. Make a call to any attorney you know. If you don't know an attorney, ask to use the yellow or business pages to find one or ask to call the telephone company's directory assistance number. A good place to start in the phone book might be under the listing for your local criminal law bar association, (e.g., the Harris County Criminal Lawyers Association) or under the heading "Board Certified Criminal Law Specialists". Make the call even if you don't know or have a lawyer, if your lawyer is beyond local distance dialing, or your arrest time is not during regular business hours of most law offices.
Here, you should know that most law offices answer their phone even after closing through use of an answering service. Many of these services can actually connect you directly to an attorney at his home.
Upon reaching an attorney on the telephone be sure to ask the officer for a chance to speak with the lawyer in private. Where the police refuse to allow you privacy, they violate your right to an attorney. Absent giving you privacy, the police provide you with only a warm body to talk to on the telephone. This is so because the lawyer, in order to maintain the attorney-client privilege and to protect your right to remain silent, must tell you not to say anything. Here, it is axiomatic that a lawyer can only give you proper advice where you can first tell him what has happened (i.e., he applies the law to the facts and he accordingly advises you what to do).
Always do exactly what your lawyer tells you to do - nothing more and nothing less. If he tells you to perform exercises before a video camera and/or to answer police questions concerning alcohol consumption, then do it.
In regard to the intoxilyzer breath test, if your lawyer tells you to simply take it, we'd recommend changing lawyers. It is, at least in the authors' opinion, wrong to advise a person to take a test on a machine which is incapable of being independently verified as accurate and reliable. It is equally wrong to advise a client to submit to such a test where the police fail to preserve, and in effect destroy the breath specimen they will ostensibly use to prove you guilty. Personally, we're not going to take a test that can't be rechecked to determine it's validity.
Arguably, the best indicator of a person not having lost the normal use of his mental faculties is the fact that he simply won't take the breath test. Here, we believe a person would have to be drunk to agree to take a police test that is so enmeshed in debate about its non reliability and inaccuracies and where the police machine's own manufacturer doesn't warrant it fit for any particular purpose - including breath testing. Under such circumstances, only a drunk, insane, uneducated, or coerced person would submit to a breath test where the penalty for failure might result in 180 days confinement, a $2,000.00 fine and a year's driver's license suspension, not to mention other social and automobile insurance consequences, as opposed to a possible ninety day suspension for test refusal. In other words, we would argue that, knowing the above, a person demonstrates no loss of his normal mental faculties by refusing the test, but does so by agreeing to take it. Clearly, considering all the consequences and facts noted, it cannot be reasonable and prudent judgment to take such a non-preserved test. Let us add one other "believe it or not" fact here just for emphasis. Most police officers join in our opinion and would not take the breath test either!