The right to counsel and to remain silent.
If you are arrested, do not make any statements to the police and immediately request an attorney. Any statement you make will be used against you even if you think your statement is innocuous or helpful. Be respectful, polite and simply inform the officer that you wish to speak to an attorney before you decide whether to make any statements. This request will activate several important constitutional rights. The police will often tell citizens that “it will go easier” if you make a statement and/or not involve an attorney but this is false. Neither the police, prosecutors nor court can punish you for exercising your constitutional right to an attorney or decline to make a statement. Once you tell a member of law enforcement that you wish to speak to an attorney, all questioning must stop so do not waive your right to an attorney and insist on making that call right away.
What help can I get while I am being arrested?
You also have a right to speak to an attorney to help you make certain decisions during an arrest. Apart from whether to make a statement, one of the most common examples is deciding whether to take a breathalyzer or blood test in a “drunk driving”case. You may refuse to take a breathalyzer or blood test but doing so will almost certainly result in a revocation of your license for at least one year. Because the law requires the police to take a blood or breathalyzer test within two hours, the police may declare you are refusing to take the test if you delay them. For that reason, you should immediately ask to speak to an attorney to help you decide whether to take the test or answer any questions. Since most people carry cell phones, you should have your attorney’s phone number saved in your phone and tell the officer you wish to use your cell phone to call him. Some officers will not afford you the opportunity to speak to an attorney which might result in the test results being suppressed (thrown out) so be sure to ask to speak to an attorney upon being stopped and tell the officer that you wish to use your cell phone to call your attorney. Do not believe the myth that requesting an attorney and remaining silent “makes you look guilty.” On the contrary, asking for an attorney and declining to provide statements makes you look smart and most police officers would tell their friends and family members to follow this advice.
Should I take a breathalyzer test?
The decision to take a breath or blood test must be decided on a case by case basis after considering several factors. The primary consideration is whether the loss of your license for one year for refusing the test is better than assisting the police prosecute you for DWI. Most often we encourage clients to take the blood or breathalyzer test if offered within two hours because there are pathways to continue driving during and after your case has been resolved. On the other hand, the one year revocation for refusing to take the test is virtually automatic after a DMV hearing. New York is an “implied consent” state and you agree to take a breath or chemical test at the direction of law enforcement when you obtain your driver’s license. Thus, the penalty for not “honoring” that implied consent is revocation for at least a year even if you win the underlying DWI case. However, in cases where the client has been previously arrested for DWI, the decision to take the test is more difficult because a second DWI in ten years is a felony with the possibility of going to prison for up to four years. A third DWI offense in ten years is a felony with the possibility of going to prison for up to seven years. The sentences can also be severe if someone is seriously injured or killed. In these circumstances, it may be wiser to refuse a blood or breath test rather than assist a felony prosecution by providing a breathalyzer or blood test result.
Can I be forced to take a blood or breath test?
In some cases, the police may be authorized to take your blood or compel you to take a breathalyzer. Most often your blood is taken without your expressed consent when you are in an accident and are either unconscious or lack the capacity to consent to a blood test. In those circumstances, the police may draw your blood under the implied consent rule so long as the blood is drawn within two hours of the police arriving at the accident. The police also have the option to seek a court order to compel you to take a test if they can satisfy a court that you were drunk and operating a motor vehicle. Seeking a court order is rarely done because of the time constraints of the two hour rule and the relative unavailability of judges to immediately review and sign such orders.
If the police don’t get a blood or breath test result from me, can I still be convicted of DWI?
Yes. Even if the police and prosecution do not have a blood alcohol concentration result from blood or breath testing, they may still charge you with “common law” driving while intoxicated. Although harder to prove, drunk driving can be proved by the circumstances of your arrest witnessed by the officer or a civilian (including your passenger) testifying about your condition at the time of arrest. Here is a common example:
The officer testifies that he witnessed you driving erratically and pulled you over for crossing the double yellow line. Upon approaching your window to ask for your license and registration so he could write the ticket for the traffic infraction, he smelled alcohol emanating from your mouth and noticed you had glassy eyes and slurred speech. After asking you to exit the vehicle, he noticed that you staggered and were unsteady on your feet. At the point he administered a number of field sobriety tests (stand on one leg, walk a straight line, recite the alphabet, following a light with you eyes, etc) which you failed. To further buttress a common law DWI case, motorists will often make statements in answer to the question, “have you been drinking tonight?”
Courts have held that asking this question about how much you have had to drink, without first apprising the motorist of his right to remain silent, is permissible as part of a traffic stop investigation. As discussed above, while refusing to answer questions and asking for an attorney may seem impolite or provocative and it may feel like it makes your situation worse, in the long run, it is one of the few thing you can do to reduce your chances of getting a criminal conviction for DWI.
Don’t be afraid to assert your rights.
The truth is, if you have been drinking and driving, there is little you can do to control the situation at the arrest stage of the case. Asking for an attorney and remaining silent will not change the police officer’s behavior. Many people fear that if they assert their rights during the arrest, the police might hold them in detention longer or even tamper with the breathalyzer test to inflate the results. While it is possible to contaminate a breath test sample, most officers will not risk their careers and criminal prosecution by falsifying test results. Furthermore, you must be brought before a judge to be arraigned (formally apprised of the charges and release conditions set) within 24 hours of being arrested. If an officer detains you because you asserted your rights, it will only damage the prosecutor’s case and subject him to disciplinary action and/or a civil rights law suit.
*The opinions expressed in this blog are not to be deemed legal advice. Each criminal case is different and you should always consult an attorney familiar with the facts and circumstances of your individual case. For a free consultation regarding your criminal case in New York call 845-876-3024