Do's and Dont's of being pulled over for a DUI in Hawaii
You never know when you might be pulled over and arrested for DUI. Not one of my clients planned it beforehand. What do you do? How do you handle the police? What can you do or should you do? What should you say or not say? Can anything be done to improve your case as it is unfolding? Read on.
1. Overcoming yourself and psychologyWe are all taught that the police are our friends. I often tell my friends and my clients that if you call the police because you have a flat tire and are stranded, or someone stole items from your garage and if in any event you are calling the police, then you will probably want to tell them information to tell them. In this circumstance they usually are your friend. They are there to help you. You tell them about the missing items, seek their assistance in moving your stranded vehicle off the road etc. Talk it up, he's officer friendly. The circumstances however are completely different if the police come to you without your request. A prime example is being pulled over for a traffic stop or even a road block. If you see those blue lights behind you he is not there to help you. Remember also that it is a natural human reaction to want to be helpful, to want to talk, to want to answer questions and we are taught that officers in their uniforms with their lights, badges etc are figures of authority and we must obey them. They, likewise, are taught to exercise control over the situation. The law allows them vast control and discretion in a traffic stop, ostensibly in the name of officer safety. Whether the officer comes on politely or rough, the goal is the same; he is trying to get evidence against you. What to do? Be calm. This is a lot harder than it seems. If you do not give the officer complete obedience he may turn up the pressure. Politeness may turn into rudeness, veiled threats may be used, profanity, glaring of the eyes, the officer may make you feel uncomfortable by getting very close to your body or face. He is calling your bluff. He wants you to crack, to give up, to either lose your cool, in which case he wins, or to give in to his demands, in which case he wins again. Again, be calm. Next, be polite. Almost anything can be said in a polite manner and in a less than civil manner. Always think about what you are going to say and say it in a polite manner. Stay in control. Speaking of saying things, discussed later in more detail, remember that when an officer asks a question, especially in a DUI case, they do it nonchalantly "Have you been drinking tonight?' What a loaded question. Many people, including persons with advanced degrees have asked me what the right answer is. Is there a right answer? First let's talk about some wrong answers- While smelling of alcohol, and trust me the officer will say he smells it, saying "no" is probably not a good answer. It does nothing for you and the prosecutor will argue there was knowledge of wrongdoing on your part because you smelled like alcohol yet told the officer you didn't drink (he's implying you are lying). So what about the presumably honest answer, yes. Again, this does nothing for you and the officer will say that you confirmed what he already believede, that you had been drinking. Think outside the box- do you have to answer this question? No, you do not. How you decided to not answer is up to you. Remember that the officer may ramp up the pressure if you fail to answer the question. You may answer "I choose not to answer". Or, you may take control of the conversation and respond with something like "Am I free to go now officer?" Remember that the cop is doing his job; he is focusing on what you are doing, how you are doing it, what you are saying etc. You need to be focused on how you are responding, your every movement and expression. He's taking notes. Get yourself out of the mindset that you have no control. Much of the control rests with the officer, legally and practically, but you should exercise complete control over those parts of the interaction that you can.
2. Be prepared beforehandNo one wants to think about being arrested for a DUI but if you drive then there's a chance you can be pulled over and arrested for one. Having read the first section you might have prepared yourself mentally for dealing with the cop. What else can be done? The officer will want to establish that he had authority to get you out of the car and get you to do physical tests. In order to do this he needs certain things. One way he can get you out of the car is when you "fumble" for your papers. He will combine some other things and say that you fumbled for you license, insurance and registration. Have all these ready to go, up to date, organized, easily accessible and be prepared to hand them over smoothly when asked. As a lawyer I have to assume the worst. You might want to consider that too. What if you were arrested on the way home tonight? Would your wife or husband or friend know why you didn't come home for several hours or perhaps for two days? Keep in contact with them, let them know when you left and when you are expected home. When you have been stopped, turn off the car, pull the key out and then text them and let them know you have been stopped. What if you are actually arrested? This article is geared toward first or second time misdemeanor arrests in Hawaii. It is not intended to cover other items. For DUI arrests, assuming no other charges bail may be set between $500 and $1,500, depending on other circumstances. Most people probably don't have this on them, but if you can have it secured somewhere in the vehicle, you might want to put it in your pocket now. If your wife or husband has access to it at home, that would be good too. Most people have to hit an ATM for this unexpected amount. That could cause other problems down the line so, set aside the money ahead of time. What about smaller items? Have a pen and a pad in the car; take notes including the details of the stop as the officer is taking his notes. Get his name, how many officers there are, details about the roadblock. At some point, like getting out of the car, they will stop your note taking, but grab what you can. What if you are more techologically capable? Sure, turn on your smartphone and record the video or conversation. Better yet, have your buddy video the interaction and don't be shy about having the camera either.
3. What do I have to do and what should I not do at the scene?In Hawaii the officer needs to establish a certain amount of evidence to get you to exit your car. However, he doesn't need this if you consent to get out of the car. Thus, many cops will say "please step out of the car". At cour this will become "I asked him to get out of the car and he agreed". When I speak to my clients they often tell me the officer, thorough tone, body language and the like, made it be known, this was not a request. Sometimes that is hard to get either through client or cop testimony. While I will of course try this, you can add another layer by asking for clarification. When the officer says "would you please step out of the car", respond by saying " I don't want to get out of my car. Are you ordering me out of my car?" Now the officer should make clear he wants you out of the car. He may not; he may just repeat the "request". Don't argue this point for too long, but if he hasn't made it clear it's an order, then you say you are getting out because he ordered you out, not because you agree to any request. The cop will then tell you you are going to do some SFSTs. That's standardized field sobriety tests, or "just some tests to make sure youo are okay to drive". At court it will be "I asked him if would be willing to do some SFSTs and he agreed". You are under no obligation to do the SFSTs. It will help your attorney if you do not let the officer look at your eyes, follow his finger or pen with your eyes, assume any position, walk any like, take any steps, raise any leg etc. Just say you are not going to do them. The officer may tell you if you do them and you are ok you will be released but if you refuse he has to arrest you. He is lying. He does not have to arrest you if you refuse SFSTs. Not doing the SFSTs will not necessarily save you from arrest. See above for setting aside bail money before you ever think you will need it. Once you are arrested be sure to politely, firmly, and frequently ask to see an attorney in person and to speak with your friend or family member.
4. What about after the arrest?No matter what you did or didn't do before or at the DUI arrest, it is best if you immediately contact a lawyer and retain one. From the moment you were stopped many parts of the investigation became time sensitive. Hiring the right attorney who will take action quickly may help you in unforseen ways later down in the case. Take your notes, any paperwork you have, names of friends or others that might be helpful to your attorney. A good DUI interview will take between 15-45 minutes talking about the case.