Can What I Say Be Used Against Me? “Do you know why I pulled you over?” This is typically what the police will ask any driver during a traffic stop. Most people will tell the police officer exactly why they think they were pulled over. It could be an admission to speeding, failing to signal, or making a wide turn. Whatever you say, if you admit to a traffic violation, the government now has the evidence it needs - your admission to a traffic violation -to argue the traffic stop was “good.” You see, the police just can’t pull any motorist over, there needs to be a legal basis for the traffic stop. By admitting to violating any traffic law (even if you didn’t), you give government evidence supporting the stop.
In addition to your driving pattern prior to the traffic stop, the officer will try to develop a reason to ask you: “Have you had anything to drink?” Things that make a police officer ask you this question are: your driving pattern; the smell of an alcoholic beverage; your eyes are bloodshot or glassy; you fumble getting your driver’s license, registration, and/or insurance card; your speech is slurred. If you’ve had none, you’ll say so. If you’ve had a drink, you will feel fine telling the officer. If you’ve had more than one, if you’re like 99% of the people, you’ll tell the officer you had “2 drinks” no matter how many you’ve actually had. Regardless, by admitting to drinking any alcohol, you will give the police officer further evidence against you.
For technical reasons, which I’m happy to talk with you about should you ever need to retain me, the police are not required to warn you that what you say during the early stages of a traffic stop that what you say can and will be used against you. If you admit to violating a traffic law, that can and will be used to bolster the reason the officer pulled you over (the basis for the stop). If you admit to consuming any alcohol at all, that can and will be used as evidence that you were actually driving while impaired, in violation of the law – DUI or DWI.
The answer to this question is: Yes, what you say to the police officer on the side of the road during your DUI stop can be used against you. Don’t try to talk yourself out of this…you can’t. All you end up doing is giving the government evidence to use against you. Do I Have To Do The Roadside Field Sobriety Tests (FSTs)? The next thing that happens during a traffic stop is the officer tells you he smells alcohol and asks how much you’ve had to drink. If you admit to drinking any alcohol, that will be used against you (See Question #1)! The officer then asks you to get out of your car. You have to comply and get out of the vehicle. He’ll ask you to do some “field sobriety tests” just to confirm you’re not impaired. He may “ask” you to do them. He may ask if you “mind” doing the tests. He may even tell you that you don’t have to do them. No matter how nice the officer seems, don’t be fooled. Just as with the questions he’s asked you, the field sobriety tests are designed for the officer to gather additional evidence to be used against you. Why would any person voluntarily give the police officer more evidence for a criminal charge – DUI/DWI - against them? It is because most people think either they have to do the tests (they don’t), or they can beat the tests (they can’t).
The standardized field sobriety tests consist of a series of three general tests: (1) the Horizontal Gaze Nystagmus (“HGN”) test; (2) the “Walk and Turn” test; and (3) the “One-leg Stand” test. For the HGN test, the officer will have you stand with your head still and follow his finger from side-to-side. For the “Walk and Turn” test, the officer will have you walk heel-to-toe for 9 steps, make a specific turn, and walk back for 9 heel-to-toe steps. For the “One-leg Stand” test, the officer will have you stand on one leg, look down at the foot that is off the ground, and count out loud until he tells you to stop. The officer is not only looking to see if you can follow the instructions, he is also evaluating you during the “instruction phase” of each test, meaning he’s always watching and scoring you! (Hint, except for the HGN test, the tests are difficult to do under the best of conditions.)
The answer to this question is: No, you do NOT have to participate in field sobriety tests. There is no penalty if you don’t do them. If you do them, there’s a good chance you’ll fail them and give the government more evidence to use against you. Do I Have To Blow Into The Machine? After the field sobriety tests or, if you were smart and chose not to do them after your refusal to do the tests, the officer will then ask you to submit to an analysis of your breath to determine whether the machine says you’re over the legal limit of 0.08. The officer needs “probable cause” (evidence that there’s a probability to believe you’ve committed the crime of DUI/DWU) in order to give you the test. In 99 cases out of 100, the office needs to only point to: (1) your driving pattern which led to the traffic stop; (2) your admission to drinking (no matter the amount); and (3) his observations of you either in your car (smell of alcoholic beverage; glassy/bloodshot eyes; difficulty getting your documents). Trust me, if the officer thinks your DUI/DWI, he’ll establish probable cause.
Here’s where it gets tricky. You are not required to submit to a breath test. If you don’t, though, your driver’s license will be suspended if the police follow standard protocol and warn you that your license will be suspended if you refuse. It doesn’t sound right, but it’s true: If you refuse to provide the State with evidence to use against you, you’ll be punished with a suspension of your driver’s license. Generally, if you’re given the proper warnings, and don’t win a challenge to the traffic stop, your driver’s license will be suspended for 1 year if it is your first refusal and 2 years if it is your second refusal within the previous 10 years. This is a big deal because the suspension is “absolute,” meaning, there are no exceptions!
The answer to this question is: No, you don’t have to submit to a breath test. If you don’t, though, in most cases your license will be absolutely suspended for at least 1 year. How Much Time Do I Have To Deal With My DUI You’ve been arrested for DUI/DWI. You think you have plenty of time to research lawyers, contact the ones who you think can help you, and decide who to hire. That’s not entirely true if you want to preserve your driver’s license.
There are 2 different proceedings against you when you’re arrested for DUI/DWI. One with the Idaho Transportation Department (“ITD”) and one with the courts. The ITD case involves only your driver’s license. The court case involves both your driver’s license and your freedom. For the ITD case, you’re only given 7 days (that’s right 7 days) from the date you are given the Notice of Administrative License Suspension (typically the date of your arrest) to challenge the DUI and save your driver’s license!
Because you only have 7 days to notify ITD you want to challenge the DUI arrest, you cannot delay hiring an attorney to help you. If you don’t tell ITD you want to challenge the DUI within 7 days of your arrest, your license will be administratively suspended, and you won’t be able to legally drive.
The answer to this question is: If you want to protect your driver’s license from suspension, you need to notify the ITD of your intent to challenge your DUI/DWI within 7 days from the date you are given the Notice of Administrative License Suspension (typically the date of your arrest). How Do I Choose The Right DUI Lawyer For Me? You’ve been arrested for DUI/DWI. You know you only have a 7-day window to challenge your arrest with the ITD to save your driver’s license (although you certainly have longer with your court case). What are some of the things you should look for in a DUI/DWI attorney? A good DUI/DWI lawyer can make all the difference in your experience and in your result.
• During your meeting with the attorney, are things explained in a patient and understandable way? Hiring an attorney is one of the most important decisions you’ll make in your life; your very freedom can depend on it. If the lawyer doesn’t explain things in a way you understand them, you should move on.
• Does the attorney regularly appear in court? If the lawyer you are talking to doesn’t regularly go to court in the county of your DUI/DWI, he/she will not know the judges, the court staff, and the prosecutors. An attorney who knows his/her way around the courthouse is more likely to know the particulars of the judges and prosecutors and, therefore, will be better able to represent you.
• Is the attorney you are considering a general practitioner, a criminal defense lawyer, or does the attorney focus on DUI/DWI? You’ve heard the expression “Jack of all trades, master of none”? You should be looking for a DUI/DWI “master.” An attorney who has a general practice will not likely to be in court very much. A criminal defense attorney is likely to know his/her way around the courthouse but may not have the knowledge necessary to zealously advocate for you. For example, will an attorney who takes all criminal cases know the science behind breath testing or the strict requirements which must be followed by the police during the field sobriety tests?
• What do former clients say about the attorney? One of the best resources for clients searching for an attorney are what former clients say about that attorney. Websites like AVVO.com and Google.com can lead you to reviews of the attorneys you are considering hiring. Read them. They can help you.