ROADSIDE TESTS |
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Q. I have driven by people stopped by police and seen them doing things like walking a line or balancing on one foot at the roadside. If I am stopped by an officer, do I have to do these things? |
A. NO, you do not have to do such tests (including blowing into a portable device at the scene of the stop) and YOU SHOULD ALWAYS POLITELY DECLINE TO DO ANY ROADSIDE TESTS. |
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Q.But I want to show the officer that I’m not drunk so he’ll let me go. Isn’t doing these tests the best way to show that? |
A. NO. The tests are not really designed to determine sobriety. They are balance tests designed to provide evidence to be used against you. They will not prove that you are sober but they may help prove that you are intoxicated. Politely decline to do them. You do not need to give any reason. |
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Q. I have talked to friends who have been stopped and investigated for DUI and I am not clear on what I HAVE to do in that situation. What MUST I do when stopped by an officer who smells the odor of alcohol coming from me? |
A. There are only a few things that you MUST do.
1. You MUST produce your license, registration, and proof of insurance upon request or demand for them by the officer. (any “request” is actually a “demand” since you can be convicted of a separate violation for not producing them)
2. You MUST step from the car if ordered to do so and stand where told. This is allegedly for officer safety. (know however, that you are really being asked to do so in order for the officer to indicate that you were swaying or that you put your hand on the car which he will say was “to maintain your balance”) The officer wants to see you stand and walk and if he smells alcohol on your breath he WILL see a balance problem.
3. If arrested, you MUST take a breath test at the station (unless you are willing to lose your driving privilege for one year. – Actually you can still drive but must get SR 22 insurance, an interlock device and an “interlock license - which are expensive)
That is all. Everything else is up to you. You do not have to discuss whether you have been drinking, do not have to take roadside tests, and do not have to blow into a machine beside the road. |
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Q. Won’t it look better for me in court if the officer indicates that I have been cooperative, and therefore shouldn’t I do whatever he asks so that he will say so? |
A. No. On one of the officer’s forms is a check box for “cooperative.” Lawyers and judges know that when this box is checked, it normally means that the officer believes that the person has provided sufficient information to convict himself. (via discussion of his drinking, his balance, roadside “tests,” portable breath testing, etc.) Judges do not make decisions based upon whether a person has in the officer’s opinion been “cooperative,” but upon what the person actually does and says. |
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ADVICE OF RIGHTS - Remember you must actually SAY that you want to speak to a lawyer – Do so early and often |
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Q. I watch a lot of TV and I know all about Miranda, but there may be things I need to tell the officer which will help me, so I should agree to talk to him for those purposes shouldn’t I? |
A. NO. Most of us believe we know our Miranda rights because we have heard them stated so often. However, very few of us actually listen to what is being said. The second sentence tells us that anything we say will be used against us. That is told because it is true. Anything said, will be used against you.
*See the video entitled “Don’t Talk to Police” by professor James Duane on You Tube at http://www.youtube.com. This is a must see for all citizens. |
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Q. If an officer has not advised me of my Miranda rights, then he cannot use anything I say against me in court, right? |
A. WRONG. The officer does not have to advise you of those rights until such time as he effectively makes a full custodial arrest. (i.e. he tells you you’re under arrest, places you in handcuffs, puts you in the back of a patrol car or other means of placing you in custody. That means that EVERYTHING you say up to that point can be used against you even though you haven’t been told of your right not to answer questions. When you are asked where you are coming from (which you can answer by simply saying “that’s personal”) he is trying to see if you will say you just left a tavern or other place you may have been drinking. If for instance, you say you’re going home from the Seahawk’s game, you have told the officer that you just left a place where alcohol is served and that fact will be used against you. |
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Q. Why are there two places for a signature on advice of rights forms? |
A. The first signature space is simply to indicate that the rights were read to you or that you read them, and that you understand what you were told. Do you? You should read these when you have not been drinking and pay close attention to what they really say.
The second signature space is a waiver of your rights meaning that if you sign it you are agreeing to give up (waive) your constitutional rights under the State and Federal Constitutions. You are saying that you are WILLING TO GIVE UP ONE OF YOUR MOST PRECIOUS PERSONAL FREEDOMS!! Do you really want to do that? You should never sign the second part and should indicate OUT LOUD that you do not want to be questioned without a lawyer present. |
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Q. If I do not sign the second part and, therefore, do not waive my rights, that means that I am saying that I do want to exercise my rights, correct? |
A. NO. Many courts hold that just because you do not sign saying you give up your rights does not mean that you have decided to actually exercise your rights. You need to write on the form or say to the officer that you wish to exercise your rights and do not want to be questioned without a lawyer present. Ask to speak to a lawyer before answering anything and do so early and often. |
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PRESCRIPTION DRUGS |
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Q. The officer may think I’m drunk because of the way I react to some of my prescription drugs, so shouldn’t I let him know that I am taking prescriptions? |
A. NO. A person is guilty of DUI if he/she drives while “under the influence” of alcohol OR drugs. This includes prescription drugs and particularly (though not exclusively) drugs whose label has a warning against driving or operating machinery or anything of that sort. Telling the officer that you are taking prescription drugs just gives him a further opportunity for arrest and may provide him with a reason to take a sample of your blood for testing. DO NOT CARRY PRESCRIPTION BOTTLES IN YOUR CAR UNLESS ABSOLUTELY NECESSARY (in which case should you be driving?) AND THEN MAKE SURE THEY ARE STORED OUT OF SIGHT. |
