Take It From a Lawyer – What to Do When You’re Being Pulled Over

Take It From a Lawyer – What to Do When You’re Being Pulled Over

You’re out for the evening, hoping to have a great time when… Oh no! You see the flashing lights of a police car behind you, beckoning you to pull over to the side of the road. Your heart sinks into the pit of your stomach as panic begins to set in. But have no fear! If you’re well prepared and keep your wits about you, you’ll come out of this unscathed. But what SHOULD you do? Just follow these simple suggestions, and everything will be fine.

GENERAL CONSIDERATIONS (FOR ALL TRAFFIC STOPS):

1. First and foremost, REMAIN CALM. Take a deep breath and clear your head. Find a safe place to stop and pull your car off to the side of the road. Put the car in “Park” and retrieve your Driver’s License, Vehicle Registration, and Proof of Insurance. Have them ready when the officer comes to your window. He/she may not ask for all of them, but it’s best to have them handy so there won’t be any fumbling for them while the officer is standing at your window. You’ll be plenty nervous, and you don’t want nervous clumsiness to be mistaken for a sign of drunkenness/impairment.

2. ALWAYS be polite and respectful with the officer(s). While we’ve all the heard the stories about dirty cops pulling people over just to harass them or to meet some sort of “arrest quota,” most law enforcement officers are simply trying to do their jobs, and have pulled you over because they have a genuine suspicion that something is amiss. Besides, nobody has EVER helped his/her cause by angering the officer that pulled him/her over. It’s a great way to make things MUCH worse MUCH faster. Believe it or not, I’ve actually seen officers “go to bat” in Court for people they’ve pulled over, just because the person was courteous and respectful with them. And in this particular situation, you don’t need to go making an enemy of the person who has the power to decide whether you go home or to jail for the night.

3. While you’re being courteous and polite, DON’T expect the police officer to do you any favors. THE OFFICER IS NOT YOUR FRIEND. He/she is gathering evidence to use AGAINST you. Don’t give it to him/her. Well, how do I do THAT, you might be asking? Keep reading.

4. Hand the officer whatever documentation he/she requests, and get out of the car when he/she asks you to do so, but don’t do ANYTHING else. Under the law, you are required to provide identification when the officer asks for it, and you are required to get out of your vehicle when asked to do so. However, you are not required by law to do ANYTHING more unless you are under arrest.

5. Do not say anything that could be used as evidence against you. Again, the officer is not your friend. You are NOT going to “talk your way out of it.” The more you say, the worse it is for you. Some people seem to think that the best way to make the situation better is to just “spill their guts.” Not true. You say nothing. You admit to nothing. If the officer presses you to answer his/her questions, simply tell him/her that you do not feel comfortable answering any questions until you’ve spoken to an attorney. At that point, the officer MUST end all questioning. However, if he/she doesn’t, continue to repeat the above phrase verbatim until the officer finally realizes that there isn’t going to be any information forthcoming. Even questions that seem to be innocuous, or just “harmless conversation” can come back to haunt you later if you give the wrong answers. Don’t try to assess which questions are OK to answer and which ones aren’t (especially when your mental faculties are already compromised by the stress of having a police officer standing in front of you). You have the right to remain silent. Use it.

6. Do not comply with any of the officer’s “requests.” If he/she wants you to give your consent to have your vehicle searched, refuse to give it. If he/she wants you to submit to Field Sobriety Testing, refuse to take the tests. If he/she asks you to do ANY kind of testing whatsoever, refuse to submit to the tests. (More on this particular subject matter later.) The only time you ever are required by law to do anything is when you’re under arrest. And you are not considered “under arrest” until you’re cuffed in the back of the cruiser. These are your rights as provided in the Constitution. They exist for your own protection. Use them.

7. Do not fall for the officer’s “tricks” or “threats.” Police officers are allowed to lie to you, tell you half-truths, and even threaten you (to a certain extent), and they will do it without reservation if they think it will lead to a conviction. Stand on your rights. Remain silent, refuse to comply with requests, and ask to speak to an attorney at every turn. And don’t forget that while you’re stonewalling, always be courteous and respectful.

8. If you’re being given a traffic ticket, you may be asked to sign it. This is not an admission of guilt. It simply indicates your acknowledgment that you received a copy of the ticket, so feel free to sign it. After you’ve received your ticket and are on your way, check the ticket for information regarding your Court date (usually indicated at the bottom somewhere), then contact an attorney to determine whether or not it is worth your while to fight the ticket in Court. A good percentage of the time, you can receive a better result showing up in Court and contesting the ticket than you can by simply paying it. The Prosecutor has the ability to negotiate with you, and you can often obtain a significant benefit by doing so. For example, you might be able to negotiate your ticket down to a non-moving violation (which is a benefit to you because it carries no points against your license and won’t cause your insurance rates to go up), or you could negotiate away the points the violation carries against your license. It’s alway a good idea to at least TRY to negotiate your ticket down. There is much to be gained and little to lose.

SPECIFIC TO DUI/OMVI/OVI/DRUNK DRIVING STOPS:

9. Of course, the absolute BEST way to avoid being arrested for DUI is to not drink and drive at all. This is wonderful advice, but it’s likely of little consolation to you now, the day AFTER you were arrested for drunk driving. For people who find themselves in the unfortunate position of having made the wrong choice (or even people who REALLY DIDN’T make the wrong choice, but are suspected of drunk driving anyway), and now have flashing police lights behind them on the roadway, here’s what to do.

10. If the officer suspects that you are driving while impaired (from alcohol consumption, drug use, or any other reason), the first thing he/she will ask you to do is to take a series of Field Sobriety Tests (FSTs). As I mentioned above, you should ALWAYS refuse ALL of them. If you’re wondering why, and aren’t satisfied with the blanket, “because it is your right to do so” response, I will discuss the reasons why you should refuse to take each specific Field Sobriety Test below. There are three (3) standard Field Sobriety Tests you’ll be asked to take. They’re ALL wildly unreliable, yet they’re given great weight as “evidence” when presented in Court. And to use a euphemism that’s much easier to remember, “Don’t give them the rope to hang you with.”

11. The first test you may be asked to submit to is known as the Horizontal Gaze Nystagmus (HGN) test, more commonly known as “the pen test.” During this test, the officer will hold a pen or his finger in front of your face about six inches away and move it slowly back and forth. You will be asked to watch the pen, tracking it only with your eyes (not turning your head). The officer is looking for six (6) “clues” (three in each eye) which he will supposedly determine whether or not you’re under the influence of alcohol. Nystagmus, in general, is a “bobbing” or “pulsating” of the eye. If you demonstrate Nystagmus, your eye will be unable to smoothly track the movement of the pen to the side (horizontally), and will instead make erratic “jumps.” If the officer notices Nystagmus in your eye, he/she will chalk it up as a sign of your impairment.

11a. Why you should refuse to submit to the HGN test. This test, while it SOUNDS very scientific and foolproof to the average person on the street, it is actually anything but. While HGN can be a sign of alcohol-induced impairment, there are about 100 other explanations for why a person’s eye may demonstrate HGN. The police officers are not trained as to what these 100 other explanations are (nay, that they even EXIST). They are simply trained that when the eye “bounces,” that person is drunk. Not so! Additionally, there are a whole host of different KINDS of Nystagmus which all have different causes (most of which have absolutely nothing to do with alcohol use). The police officers are not trained to recognize the different KINDS of Nystagmus. Again, they are ONLY trained that when the eye “bounces,” that person is drunk. So imagine that you’ve just submitted to the HGN test, and the officer notices Nystagmus in your eye. That officer doesn’t know and wasn’t trained in how to recognize which KIND of Nystagmus it is, nor does he/she know what ACTUALLY caused the Nystagmus to appear (FYI, Nystagmus can be caused by any number of innocuous factors that have nothing to do with alcohol use, from cigarette smoke, to crying–there is even a certain percentage of the population that demonstrates Nystagmus just as a naturally occurring condition in their eyes). That officer will mark down on his/her report that he/she noticed “all six clues” (I’ve NEVER seen an arrest report in which the officer saw ANYTHING other than “all six clues”), and that will be submitted to the Court as evidence that you were drunk. Then it will be up to YOU to prove that the test, report, and/or inference it raises are inaccurate. Good luck with all that. You would be much better served if there were just no report to begin with (remember, “don’t give them the rope to hang you with”?) So just avoid all those pitfalls and simply refuse to submit to the HGN test.

12. The “Walk And Turn” Test. In this test, you will be shown a line on the road and asked to walk on it. But here’s the catch: you can’t just walk on the line and that’s it. There is a laundry list of requirements you have to meet in order to “pass” the test. First of all, you have to stand ramrod stiff. You’re not allowed to look down at the line with your head. You’re not allowed to raise your arms from your sides more than six inches. You’re not allowed to even walk like a normal person (you have to touch your heel to your toe on every step). Then you have to do a bizarre spinning turn at the end and come back. All without stepping off the line. And as an added bonus, you ALSO have to count your steps. But you can’t JUST count your steps; there is a very specific WAY you’re supposed to count your steps. You have to start at one, and count the specific number of steps the officer tells you (the number is different every time), THEN, after you’ve negotiated the bizarre spinning turn, you have to count your steps BACKWARDS from where you started. And, oh by the way, you get docked points for just a FEW things: swaying while listening to the instructions, not keeping your feet locked together while listening to the instructions, raising your arms more than six inches from your body at ANY time, looking down at the line with your head, stepping off the line on ANY of your steps, NOT touching your heel to your toe on every step (any gap between the heel and toe is unacceptable), starting counting on the wrong number (do you start from zero or from one?), ending counting on the wrong number, incorrectly doing the Michael Jackson spin at the end of the line, starting counting with the wrong number while counting backwards on the way back (is the spin considered a step? If you go nine steps, do you start counting backwards at nine or at eight?), ending on the wrong number (do you stop at one or at zero?), etc.

12a. Why you should refuse to submit to the “Walk And Turn” test: If the answer isn’t patently obvious to you by now, just go try to complete this test right now in the comfort of your own living room, dead-solid sober. How many people have ALREADY failed? Now consider that this test will generally be given to you on the side of a public highway (with cars rushing past you at high speeds), in the dark of night, on an inconsistent surface (the road could be uneven, wet, slippery, gravel-covered, etc.), with 37 bazillion megawatt lights flashing in your eyes, and under the stress of possible arrest/incarceration. Yeah, this test is KINDA unreliable as an indicator of impairment. So don’t go to Court and try to argue that even though you failed the “Walk And Turn” test, you weren’t REALLY drunk. Don’t give them the rope to hang you with. Refuse the test.

13. The “One-Leg Stand” Test. In this test, you will be asked to stand in front of the officer, lift one of your feet off the ground and stand on one leg while you count out a certain amount of seconds (usually 30 or more). Sounds pretty straightforward, right? Well, once again, there’s a catch. This test has yet another laundry list of requirements, and they include: not standing with your feet locked together while listening to the instructions, swaying while listening to instructions, raising your arms more than six inches from your body at any time, not looking straight ahead with your eyes and head, lifting your foot either MORE or LESS than the required 12 inches off the ground, not counting the right way (it’s supposed to be, “One one-thousand, two one-thousand, three one-thousand,” etc.), counting too fast, counting too slow, not starting on the right number, not finishing on the right number, putting your foot down before you reach the designated ending number, wobbling too much while your foot is in the air, etc. And you can’t even lift your foot straight up off the ground in a semi-natural way. You have to raise the foot up IN FRONT OF YOU, with your knee locked and your leg straight (sort of like you’re about to start walking, but just froze in mid-step). Once again, you see that the devil is in the details with this one.

13a. Why you should refuse to submit to the “One-Leg Stand” test: Again, as I mentioned in 12a., it should be pretty obvious to you by now why you shouldn’t take this test. But if you’re still unconvinced, again, go try to do it in your own living room and see if you can pass. Then figure in the same considerations mentioned in 12a. Are you ready to let a child’s balancing test determine whether or not you should go to jail? Yeah, me neither. So don’t give them a test to use as evidence against you in Court. Don’t give them the rope to hang you with. Refuse this test too.

14. Now that you’ve refused all the FSTs the officer has offered you, you are probably under arrest and sitting in the back of the cruiser (don’t curse yourself OR me for putting you in this position–the dirty secret nobody will tell you is that if an officer suspects that you’re drunk enough to try to give you FSTs, you’re going to be arrested anyway, regardless of how you would have performed on them, for a 100% certainty, and by doing things this way, you’ve actually protected yourself at the same time). Once again, don’t talk, don’t answer any questions, don’t do ANYTHING until you speak to an attorney. That means refuse any test you’re offered. Which brings us to the next phase of the DUI stop.

15. The Breathalyzer/Breath Test. By now, you should probably know very well what to do. That’s right, REFUSE IT! Why? Because even though they’re machines, they’re not infallible. Most breathalyzer machines are wildly inaccurate and inherently unreliable. There can be mechanical errors with the machine, and there can be human errors with its calibration and/or operation. How many times have you had something go wrong with your TV, or your computer, or your dishwasher? Well, these machines are just like that. Except when breathalyzer machines malfunction, it’s more than just an inconvenience; innocent people go to jail. Because most jury members will take the breathalyzer machine results as solid gold evidence. If you’ve got a breathalyzer test showing you were over the legal limit (whether you actually were or not), you can pretty much kiss any chance of walking away from this without a DUI on your record goodbye. So don’t give a glorified toaster the chance to convict you. Don’t give them the rope to hang you with. Now, I can already hear a lot of you saying, “But if I refuse the breath test, I’ll lose my license for a year!” Well, let me just say that the quick answer is: that’s true. But we’ll discuss that in greater depth later.

16. If you feel that you absolutely MUST submit to some sort of Blood Alcohol Content (BAC) testing, always insist on either a urine or blood test. Not only are those tests much more accurate and reliable (the blood test, slightly moreso than the urine test), but they’re also easier for your attorney to try to combat in Court. With all the administrative regulations placed on the gathering, storing, and testing of blood and/or urine samples, there are a ton of different ways the test can be tainted in a way that will allow your attorney to have it suppressed (a fancy word which means the Prosecutor can’t use it as evidence against you). Just remember that these test aren’t infallible or 100% accurate either. AND, as has become a running theme it seems, when you submit to any kind of testing, you’re handing the State, the entity that wants to hang you, a long, sturdy piece of rope. Just don’t do it.

17. In some States, the law is being changed to cut down on the accused’s right to refuse Blood Alcohol Content (BAC) testing. Some States are allowing Judges to issue search warrants for a person’s blood. Meanwhile, some States are proposing changes to the law that make the act of refusing BAC testing an entirely separate crime. I believe that both measures are an affront to our Constitutional rights, and I don’t believe either would withstand Supreme Court scrutiny, but that’s another topic for another day.

18. Now, returning to the idea that if you refuse BAC testing, you could lose your driver’s license for a year. As I said above, the quick answer is that it’s true. Under most States’ “implied consent” statutes, you are considered to have agreed to submit to BAC testing upon request of law enforcement simply by, and as a condition of, possessing a driver’s license. Failure to comply with this agreement permits the State to suspend your license for a period of time (usually a year), no questions asked. And the kicker here is that even if you prove your innocence in Court and receive a “Not Guilty” verdict, you still eat the license suspension (again, it has nothing to do with whether or not you were driving drunk; it is a penalty for refusing the BAC test). So you may be asking, “Why would I ever take your advice and refuse the breath/blood/urine test?” Because, like most things in life, it’s what you DON’T know that can really hurt you. What you DON’T know, and what no police officer will EVER tell you (mainly because they’re trained not to–remember how we discussed earlier the fact that police officers are allowed to lie?) is that by the time you’re sitting in front of the breathalyzer machine, you’re ALREADY going to lose your license for 6 months. When you blow over the limit (and trust me, you will) the State imposes what’s known as an Administrative License Suspension (ALS) and you lose your driver’s license for 3 months right there on the spot. And when you’re convicted of the DUI (and trust me, with a breathalyzer test over the limit, you WILL be), the Court will then convert that ALS into a Court-ordered suspension and make it 6 months. So I ask you, would you rather lose your license for SIX months and hand the State your conviction on a silver platter, or would you rather lose your license for TWELVE months and have a chance to walk away from this whole ordeal without a DUI on your record (and all the penalties associated with that)? The choice is yours.

19. OK, now you’ve been released from the police station with all your various documents in hand. What next? This is the easiest one. CONTACT AN ATTORNEY RIGHT AWAY. If you’ve done everything right up to this point, your attorney will have plenty of ammunition to use against the Prosecutor, and you’ll leave yourself with plenty of available options. If you’ve done everything wrong, it won’t matter if you’ve hired the most gifted attorney ever to walk the Earth; he/she will have the ability to do little more than stand beside you as you accept your conviction. Now, a word about hiring an attorney. Make sure it’s someone who actually practices, and has plenty of experience in the criminal defense/drunk driving defense field. You wouldn’t go to your dentist if you needed brain surgery. Don’t hire somebody just because he/she’s cheap and has a degree on the wall behind his/her desk (or he/she’s a family friend, or whatever reason). And if you’re entertaining the notion of representing yourself to save a few bucks, just report directly to the jail. You’re not doing yourself any favors. When I was just out of Law School, I had a Judge explain it in a way that I’ll never forget. He said, “A doctor is qualified to remove an appendix, but a doctor would be a damn fool to try to remove HIS OWN appendix.” Don’t be a fool. Hire experienced, competent counsel.

20. When you look at your paperwork, you may notice that you’ve been charged with TWO counts of DUI. Don’t panic, this is standard. Basically, there are two statutory code sections that deal with DUI. The first section, also known as the per se section, says that you are guilty of DUI when you are found to be operating a vehicle with a prohibited concentration of alcohol in your blood, breath, or urine. The State can prove this section simply by introducing the results of the breath/urine/blood test you mistakenly submitted to before reading this article (do you see now why you should refuse those tests?) The second section, also known as the impaired section, says that whether or not you have a prohibited concentration of alcohol in your blood, you were still too impaird to drive. This is how the State is able to prosecute people who either refuse the breath/blood/urine test, or who actually test BELOW the legal limit. Here’s what else you will notice in the paperwork. In the officer’s narrative (where the officer writes out “the story” of what happened, in his own words), you’ll see that you were originally pulled over for some sort of erratic driving (usually weaving or any other number of driving irregularities). You’ll then see that when the officer approached your window, he smelled a “strong odor of an alcoholic beverage on or about your person.” You’ll also see that your eyes were “bloodshot and glassy,” that you fumbled with your license, and that you demonstrated slurred and/or sluggish speech. You’ll also see that when you got out of your vehicle, you were unsteady on your feet and swayed noticeably. Then, if you were foolish enough to submit to the FSTs, you’ll see notes about how you failed every one of them (the officer will have performed the HGN and noticed all six clues, and you will have no doubt failed both the “Walk And Turn” and the “One-Leg Stand” tests miserably). Can you tell I’ve read hundreds, possibly thousands, of these arrest reports, and that they all say exactly the same things? There’s a reason for that, you know. The nice police officer is NOT your friend. He/she is trained in exactly what to write in that report that will give the State the best chance to CONVICT you. And that officer is 100% focused on that ONE and ONLY goal (getting the conviction is all that matters). Don’t give him/her the rope to hang you with.

If you do all of these things, you will have set yourself up beautifully to be able to present a defense. And even if you have no interest in contesting the charge(s) against you, you’re more likely to negotiate a favorable plea bargain with the Prosecutor if your case appears strong than you would if it’s a slam-dunk winner for the State. So don’t just walk into Court, throw your hands in the air and shout, “Convict me!” Show the Prosecutor that not only are you ready for a fight, but that you’ve got a halfway decent chance of winning that fight (you do that by following the advice given above and NOT giving the State the rope it needs to hang you). Prosecutors are used to winning (the system is set up for Prosecutors to win the vast majority of the time), and they absolutely HATE to lose. Show them you’re ready to go to the mat, and you’ll likely get an attractive offer out of them.

Then, after all the preparation, show up to all your Court dates, resolve your case in the best manner possible, take whatever is coming to you (whether it’s a conviction, a dismissal, or anything in between), learn as much as you can from the experience, and get on with your life.

By the way, if you happen to come to your senses and find yourself on the road when you know you’ve had too much to drink, follow these instructions: immediately pull off the roadway and park the car in a safe place, turn off the engine (turn it off all the way–don’t even leave the battery on so you can listen to the radio and/or run the heater), take the keys out of the ignition and put them someplace far away from you (either the glove box or the trunk or someplace outside the vehicle), crawl into the BACK seat and sleep it off. You are considered to be “operating” your vehicle if you’re in the driver’s seat, the engine is running, or you have the ability to easily put the car into motion (meaning if the keys are in the ignition, in your pocket, or someplace easy for you to access). The law doesn’t care whether it’s cold and you need the heater to survive, and the law doesn’t care if you need the radio on to sleep. Don’t keep those keys in the ignition for ANY reason. Just try to suffer through it long enough to get yourself sober so you can drive home safely. So just remember the easy guidelines: get out of the front of the car and into the back, and take the keys out of the ignition and put them someplace nowhere near you. This way you can avoid being convicted of DUI despite the fact that you were TRYING to do the right thing.

* DISCLAIMER: Bear in mind that I am only licensed to practice law in the State of Ohio, and the vast majority of the advice given is based on my understanding of and experience with Ohio law only. If you have questions about the law in any other State, please contact an attorney licensed to practice law in that particular State. The State Bar Association should be able to help you locate an attorney who can help you. However, if you have questions regarding Ohio law, or if you have a legal matter currently pending against you in Ohio, please feel free to contact me at jkaufmanlaw@yahoo.com. Likewise, if you know of a topic relating to the law that you would like to see discussed in future blog posts, feel free to e-mail me your suggestions.

** DISCLAIMER: This article is for information purposes only. The dissemination and use of the information contained herein is not intended to, and does not, create an attorney-client relationship between myself and any viewer.


Original Source

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

*

*