It’s Superbowl Weekend – How to Handle a DWI Stop

by Mito Gonzalez

It’s Super Bowl XLV weekend and, for many people, it’s time to party. Do you know what to do if you’re stopped by the police?

Well, do you?

Did you know the rights given to you by the Federal Constitution can be expanded by your individual State Constitution? Do you know how to enforce your constitutional rights? Most Americans know they have rights; they just don’t know what those rights are. Never is this more evident than during encounters between the public and the police.

After practicing criminal law for fifteen years, it seems to me that now, more than ever, people are under informed or just plain misinformed about their rights and how to interact with the police. The average person has more incorrect beliefs regarding their constitutional rights than the Federal Government has holidays. That ignorance almost always negatively impacts the average citizen. This situation cannot be remedied easily, but a few simple rules can help place you on the path to knowing and exercising your rights.

1. You have the right to remain silent, use it.
   Believe it or not, most people get arrested because of what they say, not because of what they have done. If you are stopped by an officer all you must do is identify yourself. Where you are coming from, what you have been doing, and where you are going is none of his or her business. Everything you say and do in the presence of an officer is recorded. Don’t try to talk yourself out of a ticket only to get arrested for a greater offense.
2. You have the right to be free from unreasonable searches and seizures.
   Pretty much any search of your person, car, or house without a warrant is unreasonable. Never agree to allow the police to search your car. You have no idea what someone may have left in your car and you will be held responsible for anything the police find.
3. Field sobriety tests are voluntary – don’t take them.
   If the officer asks you to “take a few tests to make sure you are ok to drive,” you need to exercise your rights and just say no. The officer already believes you are intoxicated and is just looking to get you on video. These tests are not designed to test-driving skill and are not accurate at determining intoxication. Even when administered under perfect conditions, in a lab, with healthy young subjects, these tests have been shown to produce false positive indications of intoxication. None of these tests are used by doctors or in clinical situations and the medical community does not recognize them as accurate indicators of intoxication. If doctors don’t believe in them, why should you?
4. Always ask for an attorney.
   When you have a problem with your health, you call a doctor. When your problem involves the law, call an attorney. In most cases, asking for an attorney will stop further questioning from law enforcement and give you the time and access to the information you need to make good legal decisions.

Now that you know your rights, I hope you enjoy your Super Bowl weekend.

Have more questions? Contact us. We have the answers.

 

Tips for Avoiding Unreasonable Search and Seizure

By Manuel Gonzalez

Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person.

The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.

Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.

We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.

Say NO.

It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.

I have often asked clients why they consented to a search and often I hear the same rationale; “I thought if I said yes, the officer wouldn’t go through with the search.”

I cannot conceive of a worse rationale. Of course the officer is always going to search if you let him. The police are very intelligent and they know that the more opportunities they get to look for illegal stuff the more often they will find it.

To be quite frank, if they had a legitimate legal reason to search your car, they would do it without asking most of the time. Even if they have a legitimate legal reason to search your car, person, or home, if you give them consent to search you give up the opportunity to complain about the search later in court.

Tips for avoiding all types of searches:

Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.

Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.

Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.

Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.

Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.

Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.

Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.

Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.

Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.

If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.

The most important thing to remember when asked for consent to search is to say “no”.