FOLLOW THESE HELPFUL LEGAL TIPS

IF YOU ARE BEING INVESTIGATED, CHARGED, OR ARRESTED FOR A DUI or CRIME

Should You Answer the Officers Questions when you are being investigated, charged, or arrested for a crime?

Never argue with a law enforcement officer even if you think you know your rights.  Save your legal arguments for the court.  If you are being accused of a crime, you should be polite and know that you do NOT have to answer any questions without a lawyer present.  You will obviously draw more suspicion to yourself if you are not respectful or if you do not answer questions.  Therefore, it is wise to answer any questions politely and provide vague information rather than specifics.  For example, you can give your name and date of birth.  However, you should not disclose any information that could incriminate you.  (Example: I had two beers.  I just left the Cardinals game.  I haven't smoked weed in a few days.)

In a DUI investigation, avoid taking the Field Sobriety Tests, Horizontal Gaze Nystagmus Test (HGN), and Portable Breath Test (PBT). You have the right to refuse the field sobriety tests, which generally consists of the Walk-and-Turn, One-Leg Stand, HGN, and PBT and typically occurs on the side of the road. These tests can easily be used against you even if you think you can pass them. Your refusal might frustrate the police officer, but you have that right to refuse. If you are arrested for driving under the influence and taken into custody, the police officer will request that you submit to and successfully complete a blood, breath, and/or urine test. If you refuse the test after being arrested and taken into custody, your driver’s license will be suspended for twelve (12) months, or for two (2) years for a second or subsequent refusal within a period of eighty-four (84) months. If you refuse to submit to these tests while in custody, the police officer will request a warrant from a judge to order you to comply.

In the Walk-and-Turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line.  After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction.  The examiner looks for eight indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, steps off the line, uses arms to balance, makes an improper turn, or takes an incorrect number of steps.  NHTSA research indicates that 79 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998).

In the One-Leg Stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (one thousand one, one thousand two, etc.) until told to put the foot down.  The officer times the subject for 30 seconds.  The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down.  NHTSA research indicates that 83 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.08 or greater (Stuster and Burns, 1998).

In the HGN test, the police officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his or her eyes.  The Horizontal Gaze Nystagmus is an involuntary jerking of the eye that occurs naturally as the eyes gaze to the side.  Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles.  However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles.  An alcohol-impaired person will also often have difficulty smoothly tracking a moving object.

The Preliminary Breath Test is used to determine if alcohol is present in your blood when you are being investigated for a DUI on the side of the road.  It is not admissible in court.  A police officer might even say in passing, "Oh, this can't be used against you in court" or "This doesn't come into court" or "This won't hurt you in court." Nothing could be further from the truth.  If alcohol is determined to be in your system by the PBT, it goes towards determining whether, under the totality of circumstances, there is probable cause to arrest you.

Is it Legal for the Police to Search a Driver's Vehicle?

Police officers are allowed to confiscate anything illegal that is in plain view when they approach your car during a traffic stop.  It is always wise to keep things out of plain view.  In order for a police officer to search your car, or to look in the glove compartment or trunk, he must have probable cause or reasonable suspicion that he will find something illegal.  If he does not have a reasonable suspicion, then he will have to get a search warrant to search your car (which also requires reasonable suspicion).  If you were pulled over for a broken headlight, for example, it would be difficult for an officer to justify the need to search your vehicle.  However, most drivers allow police to search their cars, and if you consent to a police search, it is legal for him to do so.  You should never consent to the police searching your vehicle.  If you do not want to be argumentative with the police officer, you can just say nothing, which is the same as not consenting, or you could say that you would like to talk to a lawyer before answering questions or before allowing a search.

When Must Your Miranda Rights Be Read to You?

Police do not need to read you your Miranda rights until they have you in custody.  The police can ask you questions and if you answer the questions, then your answers can be used as evidence in a court.  When police are questioning you on the side of the road, you do have the right to be silent, but they do not have to inform you of that right.  It is possible to have a conversation with police while remaining polite and respectful without disclosing information which refers to any alcohol you may have had or any other incriminating information.  Only after you are under arrest and in police custody do the police have to read you your Miranda rights.  At that point, you should ask to speak to a lawyer and not say anything else.