Greetings tw residents.
Out of absolute frustration with the police, and pure love for all you assholes, I wanted to pass on some information about dealing with the police if you are pulled over and investigated for a DUI. I'm sure some of you already know this stuff.
Foreword: I'm an attorney in California, not other places, most of my advice comes from here, though some of it applies to other states:
DUI's are damn expensive, and I don't necessarily agree that everyone who has a blood alcohol content of .08 or more is impaired. I also think the attempt of several states to lower that level to a .05 is horseshit, and another way for local and state governments to collect taxes (dressed up in criminal penalties). Furthermore, you can be found guilty of a DUI if you are UNDER the legal limit under a catch all charging provision in most states (in California: Vehicle Code 23152(a)), so don't think you are safe from prosecution because you are under the legal limit...not necessarily true.
So, there are some legal standards and rights you need to know about:
1) 'Reasonable Suspicion' to stop you.
Cop's need to justify why they pulled you over: if they can't articulate they had reasonable suspicion you've commited a violation of the law while driving, the entire case will be thrown out. Unfortunately for the public, it's an extremely low standard, and about any traffic infraction will do. That said: here are some issues that come up:
Driving too 'slow': it's only a violation of the law to drive under the posted speed limit if you are obstructing other traffic. This means: if it's late at night, and there are two lanes going in the same direction, and you're in the slow lane, the cop can't use the fact you are going slow (because he, or other vehicles can drive around you)
Failing to put on your turn signal: you only have to do this if other traffic is nearby you.
Air fresheners in your rear view mirror: advice, get rid of them. This is the ultimate bullshit reason for a stop, but it'll fly if the cop can 1) accurately describe what the object was and 2) state on the record that he believes it obstructed your view of the road. Yep, a 4 inch air freshener is a dangerous obstruction...but it's the law.
Tire driving on the line: tires must cross over, unless prosecution can prove weaving was sustained and pronounced.
2) Probable Cause for Arrest.
Say you were pulled over for justifiable reasons (most people are), what next?
The cop is going to try and have you perform 'field sobriety tests', request that you blow into a Breathalyzer machine, and question you about how much you've had to drink.
REFUSE ALL TESTS AND DO NOT ANSWER ANY QUESTIONS BEYOND PROVIDING YOUR DRIVER'S LICENSE, REGISTRATION, AND INSURANCE PAPERS.
Why? Because you are under NO legal obligation to do such tests before an arrest, and there is minimal (if any) benefit to doing them. Conversely, there are extremely good reasons why you should refuse all of them.
But law enforcement won't tell you this. They'll say stuff like "I'm gonna have you do some tests, please step out of the vehicle" or "I'd like you to perform a couple of tests, just to make sure you're okay to drive, then get you on your way..."
Sounds hopeful right? no so fast. These tests are not pass or fail. Instead, there are 18 things you can either do correctly, or incorrectly. Was your foot exactly 6 inches off the ground? did you pivot the right way? did you take an extra step? did you estimate 30 seconds to be less or more than 30 seconds...even cops can't do these tests perfectly when demonstrating them in jury trial.
So, in practice, what's the point of such tests? so cops can justify arresting your ass.
Imagine a bridge between 'reasonable suspicion' to pull you over and 'probable cause' to actually arrest you:
RS------------------------------------------------------------------------------------------------PC
To build that bridge, cops have to obtain evidence. If you refuse all tests, and don't answer questions about drinking (which is your right) and you were pulled over for something stupid like a simple infraction (tail light, plates etc.) a defense attorney has a good shot at arguing the arrest was unlawful and getting your case thrown out.
You don't have to be rude, just say you don't want to do the tests. A cop knows damn well you don't have to do them. He might be pissed, but then he lacks the legal tools he needs to put you in handcuffs.
3) Once in handcuffs.
If they arrest you, you have a choice of doing another breath test (called an EPAS in California) or a blood test. If you refuse both, you could be charged with a refusal and lose your license for a year.
However, cops can no longer force you to take a blood test unless they gain a warrant. And they better get that warrant within 3 hours of you being observed driving, or the results can be deemed unreliable.
How do they get around that? via your 'consent'. Surprisingly, you can be deemed to have impliedly consented to a blood test if you don't verbally object to it under current laws. Meaning: the onus is on you to make damn sure the police know you are not okay with them sticking a needle in your arm. If you just sit there and allow them to take your blood, you consented. If your words or actions aren't cooperative, then you can argue you didn't consent. It's a bullshit law that I hope gets overturned, because most people who have been arrested by an armed officer in uniform are going to assume they have to follow commands. Who wants to argue/object to a police officer when they're already in handcuffs and confined at the station? not many. Current laws defining what consent are, are flawed: practically encourages people to risk facing resisting charges, merely to prove they don't consent to having a needle stuck in their arm. Asinine.
Anyway...some random stuff:
A number of police agencies receive portions of towing fees. Local towing companies often contract with police departments, so when the cops utilize their 'discretion' to impound your car, know that some of that money goes to the police. Great incentive to tow eh?
If you get a letter in the mail following a DUI arrest that requests hundreds or thousands of dollars in emergency fees: talk to a lawyer. Technically, cops can try and charge you for the privilege of being arrested...but my current understanding of this is, ONLY if they are responding to a genuine emergency (like a car accident etc.) In practice, some law enforcement agencies will try and send out demands for payment from non-accident DUIs hedging their bets that the public will assume they have to pay such fees, because, well, they are cops. Don't pay these fees until you consult with an attorney. Most of the fee requests I've seen are bullshit and premised on the idea civilians will capitulate and pay out of fear. I've seen bills that charge people about $700 an hour of the cop's time (freaking $7 a minute) It's ridiculous (don't we already pay taxes for cops?)
THINK TWICE before hiring an attorney, unless you make too much to be eligible for a public defender. If you have a lot of money, and don't want to sit in court all day, sure, hiring an attorney can be very convenient, because usually, they can handle almost all court dates without you. But if you have no defenses, what's the point really? better to go into court, accept responsibility, and deal with the fines and "jail time" (for 1st time DUIs, there are usually lots of alternatives to actual custody, like community service). Best to consult with a number of private defense attorneys first. Don't ever hire the first one you talk to, unless you were referred to him/her by a friend who can vouch for them. In California, most consultations for criminal cases are free anyway, and if they aren't prepared to give you informative advice over the phone, find someone who will. And if they tell you you've got a good case, make them explain why in a way you can understand. If they can't explain it adequately, how the hell are they gonna convince a jury of your peers if it went to trial?
There are definitely very good lawyers around who believe in the Constitution and can help you, but many lawyers make a killing off of DUI cases, and (imo) some of them way oversell what can actually be accomplished. That or (the other tactic) scare the shit out of you to get your business. That's not right imo.
Lastly: just be honest with an attorney - don't try and minimalize anything: they have a legal duty to keep what you tell them confidential. Don't try and sell your case, or wash over certain facts: the point of talking to an attorney really comes down to whether it's worth your money to go that route. If you give them flowered up facts, don't be upset if they retract their original assessment of your case once they get your police reports or view videos of the arrest. Again, it's your wallet.
Out of absolute frustration with the police, and pure love for all you assholes, I wanted to pass on some information about dealing with the police if you are pulled over and investigated for a DUI. I'm sure some of you already know this stuff.
Foreword: I'm an attorney in California, not other places, most of my advice comes from here, though some of it applies to other states:
DUI's are damn expensive, and I don't necessarily agree that everyone who has a blood alcohol content of .08 or more is impaired. I also think the attempt of several states to lower that level to a .05 is horseshit, and another way for local and state governments to collect taxes (dressed up in criminal penalties). Furthermore, you can be found guilty of a DUI if you are UNDER the legal limit under a catch all charging provision in most states (in California: Vehicle Code 23152(a)), so don't think you are safe from prosecution because you are under the legal limit...not necessarily true.
So, there are some legal standards and rights you need to know about:
1) 'Reasonable Suspicion' to stop you.
Cop's need to justify why they pulled you over: if they can't articulate they had reasonable suspicion you've commited a violation of the law while driving, the entire case will be thrown out. Unfortunately for the public, it's an extremely low standard, and about any traffic infraction will do. That said: here are some issues that come up:
Driving too 'slow': it's only a violation of the law to drive under the posted speed limit if you are obstructing other traffic. This means: if it's late at night, and there are two lanes going in the same direction, and you're in the slow lane, the cop can't use the fact you are going slow (because he, or other vehicles can drive around you)
Failing to put on your turn signal: you only have to do this if other traffic is nearby you.
Air fresheners in your rear view mirror: advice, get rid of them. This is the ultimate bullshit reason for a stop, but it'll fly if the cop can 1) accurately describe what the object was and 2) state on the record that he believes it obstructed your view of the road. Yep, a 4 inch air freshener is a dangerous obstruction...but it's the law.
Tire driving on the line: tires must cross over, unless prosecution can prove weaving was sustained and pronounced.
2) Probable Cause for Arrest.
Say you were pulled over for justifiable reasons (most people are), what next?
The cop is going to try and have you perform 'field sobriety tests', request that you blow into a Breathalyzer machine, and question you about how much you've had to drink.
REFUSE ALL TESTS AND DO NOT ANSWER ANY QUESTIONS BEYOND PROVIDING YOUR DRIVER'S LICENSE, REGISTRATION, AND INSURANCE PAPERS.
Why? Because you are under NO legal obligation to do such tests before an arrest, and there is minimal (if any) benefit to doing them. Conversely, there are extremely good reasons why you should refuse all of them.
But law enforcement won't tell you this. They'll say stuff like "I'm gonna have you do some tests, please step out of the vehicle" or "I'd like you to perform a couple of tests, just to make sure you're okay to drive, then get you on your way..."
Sounds hopeful right? no so fast. These tests are not pass or fail. Instead, there are 18 things you can either do correctly, or incorrectly. Was your foot exactly 6 inches off the ground? did you pivot the right way? did you take an extra step? did you estimate 30 seconds to be less or more than 30 seconds...even cops can't do these tests perfectly when demonstrating them in jury trial.
So, in practice, what's the point of such tests? so cops can justify arresting your ass.
Imagine a bridge between 'reasonable suspicion' to pull you over and 'probable cause' to actually arrest you:
RS------------------------------------------------------------------------------------------------PC
To build that bridge, cops have to obtain evidence. If you refuse all tests, and don't answer questions about drinking (which is your right) and you were pulled over for something stupid like a simple infraction (tail light, plates etc.) a defense attorney has a good shot at arguing the arrest was unlawful and getting your case thrown out.
You don't have to be rude, just say you don't want to do the tests. A cop knows damn well you don't have to do them. He might be pissed, but then he lacks the legal tools he needs to put you in handcuffs.
3) Once in handcuffs.
If they arrest you, you have a choice of doing another breath test (called an EPAS in California) or a blood test. If you refuse both, you could be charged with a refusal and lose your license for a year.
However, cops can no longer force you to take a blood test unless they gain a warrant. And they better get that warrant within 3 hours of you being observed driving, or the results can be deemed unreliable.
How do they get around that? via your 'consent'. Surprisingly, you can be deemed to have impliedly consented to a blood test if you don't verbally object to it under current laws. Meaning: the onus is on you to make damn sure the police know you are not okay with them sticking a needle in your arm. If you just sit there and allow them to take your blood, you consented. If your words or actions aren't cooperative, then you can argue you didn't consent. It's a bullshit law that I hope gets overturned, because most people who have been arrested by an armed officer in uniform are going to assume they have to follow commands. Who wants to argue/object to a police officer when they're already in handcuffs and confined at the station? not many. Current laws defining what consent are, are flawed: practically encourages people to risk facing resisting charges, merely to prove they don't consent to having a needle stuck in their arm. Asinine.
Anyway...some random stuff:
A number of police agencies receive portions of towing fees. Local towing companies often contract with police departments, so when the cops utilize their 'discretion' to impound your car, know that some of that money goes to the police. Great incentive to tow eh?
If you get a letter in the mail following a DUI arrest that requests hundreds or thousands of dollars in emergency fees: talk to a lawyer. Technically, cops can try and charge you for the privilege of being arrested...but my current understanding of this is, ONLY if they are responding to a genuine emergency (like a car accident etc.) In practice, some law enforcement agencies will try and send out demands for payment from non-accident DUIs hedging their bets that the public will assume they have to pay such fees, because, well, they are cops. Don't pay these fees until you consult with an attorney. Most of the fee requests I've seen are bullshit and premised on the idea civilians will capitulate and pay out of fear. I've seen bills that charge people about $700 an hour of the cop's time (freaking $7 a minute) It's ridiculous (don't we already pay taxes for cops?)
THINK TWICE before hiring an attorney, unless you make too much to be eligible for a public defender. If you have a lot of money, and don't want to sit in court all day, sure, hiring an attorney can be very convenient, because usually, they can handle almost all court dates without you. But if you have no defenses, what's the point really? better to go into court, accept responsibility, and deal with the fines and "jail time" (for 1st time DUIs, there are usually lots of alternatives to actual custody, like community service). Best to consult with a number of private defense attorneys first. Don't ever hire the first one you talk to, unless you were referred to him/her by a friend who can vouch for them. In California, most consultations for criminal cases are free anyway, and if they aren't prepared to give you informative advice over the phone, find someone who will. And if they tell you you've got a good case, make them explain why in a way you can understand. If they can't explain it adequately, how the hell are they gonna convince a jury of your peers if it went to trial?
There are definitely very good lawyers around who believe in the Constitution and can help you, but many lawyers make a killing off of DUI cases, and (imo) some of them way oversell what can actually be accomplished. That or (the other tactic) scare the shit out of you to get your business. That's not right imo.
Lastly: just be honest with an attorney - don't try and minimalize anything: they have a legal duty to keep what you tell them confidential. Don't try and sell your case, or wash over certain facts: the point of talking to an attorney really comes down to whether it's worth your money to go that route. If you give them flowered up facts, don't be upset if they retract their original assessment of your case once they get your police reports or view videos of the arrest. Again, it's your wallet.
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