Interviewer: When someone’s been arrested, what do you see people do that unintentionally hurts their ability to defend their case? What advice can you give people as far as what they should do, either during the arrest or after?
You Are Not Legally Required to Undergo the Field Sobriety Tests
Court: Almost no one realizes that you do not have to take field sobriety tests. The police are really good at making you feel like you have to, but you don’t. When they tell you to follow the penlight with your eyes, they’re giving you a field sobriety test, and you have to consent to that test.
You Are Not Legally Required to Submit to a Breath Test on the Portable Breath Test Device
If you say you don’t want to take it, they can’t give it to you. They can’t make you stand on one leg, they can’t make you walk the line, they can’t even make you blow in the portable breath test device. That’s not the Intoxilyzer they might give you after the arrest you, but the portable hand-held one they usually have. You don’t have to blow into that.
You Do Not Have to Answer Certain Questions or Volunteer Information
If you don’t say anything to the police about how much you’ve had to drink, and you don’t take any of the field sobriety tests, then they don’t have probable cause to arrest you most of the time. Quite frequently, people get themselves into trouble just by trying to cooperate with the police and by doing what they ask. Well, what people are really doing by complying is giving the police evidence.
Exercise Your Right to Remain Silent
Interviewer: When they say you have the right to remain silent, it’s a good thing. You want to definitely exercise that as much as possible throughout the process, is that right?
Court: Yes, it is right. In the Miranda Rights, you have the right to remain silent and you have the right to an attorney. They instruct you of those rights before they arrest you.
They don’t have to tell you that about those rights when they start talking to you, so that’s why a lot of people feel like they have to talk to the police when they actually don’t. Right when the officer walks up to your window, the only thing you have to do is identify yourself and give him your driver’s license if it is requested.
You don’t have to answer any other questions about where you’re going, where you’ve been, whether you’ve had anything to drink. Those answers are all voluntary. Anytime you’re answering them, you’re giving them evidence. If you say something wrong that makes them think you’re impaired, they’re going to then be able to develop the necessary probable cause to arrest you.
You Will NOT Be Able to Talk Yourself Out of a DUI Charge
Interviewer: Do you have clients that think they can just talk their way out of it if they’re well-spoken and can answer all the polices’ questions?
Court: Yes, I see that a lot. The truth of the matter is you are definitely not going to talk yourself out of a DUI. I won’t go into saying that the police want to arrest you for DUI or they have quotas to meet or things like that, but I do know just from experience in that this scenario is usually universal: It’s at night after 10:0 pm and an officer has followed you from a bar or restaurant, you’re going to get a DUI that night. They’re going to find a way to arrest you for that. It’s best to not say anything, not take the tests, and protect yourself by not giving them the evidence they need to convict you.
Once they pull you over in that situation, they’ve pretty much already made up their mind that they’re going to arrest you for DUI that night. You’re not going to sweet talk your way out of it or tell them that your house is just around the corner and you’ll be home in a second or that your friend can come to pick you up. They won’t respond to any of that. It’s not their job. Their job is to arrest people that are impaired, so they’re definitely going to arrest you in that situation. I don’t think I’ve ever heard of anybody talking him or herself out of a DUI.