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.

 

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You have the Right to Remain Silent

You have the right to remain silent. Use it!

Most people know they have the right to remain silent.  Most people know that talking to the police is probably not going to help their situation.  Most people think their situation will turn out differently.  Las Vegas makes a living off of most people.  Don’t be like most people.

Long ago, my father told me about the theory of holes.  Namely, when you find yourself in a hole, stop digging.  The more you dig, the worse it gets.  The same could be said for talking to the police.  The more you talk, the worse it gets.

Lesson One – Nobody has ever talked their way out of trouble with the police.

Don’t fool yourself.  The police are as good at their job as you think you are at yours.  They interact with dozens of people every day and every person they deal with, with few exceptions, has one thing in common . . . they do not want to talk to that police officer.  So, the police have become experts in getting you to overcome your fear of talking to them.  They assert their authority; they allude to what might happen if you don’t speak with them; they even sometimes hint that the truth will set you free.  It won’t.  Use your right to remain silent.

Lesson Two – All you are required to do is identify yourself.

No matter what the officer says, all you are required to do during a traffic stop is show them your identification and proof of automobile liability insurance and get out of the car.  I suggest keeping your insurance attached to your sun visor and, if you think you are in a situation where you might get pulled over, (leaving a Jimmy Buffet concert, leaving a local bar or restaurant open late, driving anytime on a weekend after 2:00am) put you license there as well.

Lesson Three – The vast majority of people who are convicted got convicted because of what they said, not what they did.

Your mouth is your worst enemy!  The longer it is open, the more likely you will go to jail and later be convicted.  It is that simple.  The police are not entitled to know where you are going or where you are coming from.  Nor are they entitled to know how much you have had to drink.  Drinking and driving is extremely risky behavior, but it is legal as long as you have not lost the normal use of your mental or physical faculties.

The reason the police are asking you these questions is to get you to give them information that you believe to be harmless but, in most cases, will be used by a prosecutor against you.  For example, the reason the police want to know where you are coming from and where you are going is to see if you are coming from a bar or place where alcohol is served.  The reason they ask you how much you had to drink and when you last ate is because they know prosecutors need this information to prove your alcohol concentration at the time you were driving.  Even if you don’t take the breath test, they will still come to court and say, “She told me she was coming from Joe’s Brewhaus and had drank a couple of beers.”  Even though that may be factual and LEGAL behavior on your part, the State is going to use that testimony as the cornerstone of its case against you.

If the police have a reason for stopping you, they should be able to tell you without any help from you.  My favorite type of police deception is the officer asking you to step out of the car to perform a few tests to see if you are ok to drive.  I learned many skills in driver’s education that help me operate a motor vehicle.  None of those skills involved walking a straight line or holding up one leg and counting.  The truth is unless you are weaving all over the road, aka “A Drunk Car”, the only real evidence the police have of intoxication is developed after the traffic stop.

As I pointed out earlier, none of the “tests” they are going to administer has anything to do with driving a car.  In fact, all three of the standardized field sobriety tests, (the nine-step walk and turn, the one-leg stand, and the horizontal gaze nystagmus test) have come under harsh criticism because of the number of “false positives” they produce.  (In a future article I will discuss all the problems associated with the standardized field sobriety tests and why they don’t do what police officers believe they do.)  These tests are remnants from old ways of thinking and beliefs that have either been disproved or are in the process of being disproved.

I have a really good friend that is a doctor.  When people ask him if it is ok to take a certain drug or what they should do about their health, they always do what he says without question.  If he says, “Don’t drink diet drinks,” they quit drinking them.  If he says grape juice has been shown to promote good overall health, they stock up.  But when I tell the same people, “Get a designated driver,” or “Don’t talk to the police,” or “Never take the breath test,” they shrug off my advice and go their merry way.  Only later do I hear them say, “I really should have listened to you.”

We all like to think that getting stopped after drinking only happens to other people.  Well, tomorrow you may just be one of the “other people.”  When that time comes, you don’t want to be the guy without a plan.  For those of you who want a plan for when that time comes, here it is: Keep your car registered, inspected, and in good working order. Be prepared by having your license and insurance handy. Be polite and be quiet; identify yourself and then shut up. Finally, never take any test.  I know it sound hard, but it is easier than giving up diet drinks or drinking gallons of grape juice.


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