Legal Corner

DUI type question
whorist 14 Reviews 2291 reads
posted

Should you answer any questions about if you've had any booze? This hasn't happened to me but it seems that not telling the po-po anything will at least not hurt your situation. If you have 2 pints & 10 wings then have some drunk hit you on the way home, how should you handle it? "Yes I had 2 beers with dinner 20 minutes ago", or "I'm not going to answer any questions of that nature without a lawyer present"? Again I've not had any issues but you not know when some drunk ass is gonna fuckup your weekend......any thoughts or comments would be great...

you are generally better off never telling LE anything, unless you are prepared to be charged for same.

Personally, I cooperate and tell LE how fast I was going if I'm pulled over for speeding.  Usually you'll get some credit for that, a warning perhaps, or they'll only write you up for 10 MPH or less over the limit which is a lot less points against your insurance.

There was a disturbing article in the morning paper however where the Supreme Court found 5-4 that a prosecutor can use the fact that a defendant chose not to answer questions as a material fact against the defendant in court.  It depended upon whether the defendant had been read their rights yet, or been named a suspect in the case.  If so, this is a very disheartening attack on the Fifth Amendment.

I've been trying to find out more about it on line, if anyone has a relevant link to same.

(still not a lawyer)

Your instincts are spot on, the likelihood of you saying something in that situation that will help is so close to zero as to be statistically irrelevant, especially if you HAVE been drinking.  It is also relevant to note that in a yet another screwball opinion, the police do not have to admonish you regarding your rights since you are not at that point officially detained for the purposes of Miranda.   Any questions they do ask in this situation are absolutely geared towards getting you to cough up incriminating information so all the more reason to clam up.

Couple of thought regarding the other response:  First, there's obviously a big difference between a DUI detention and a standard traffic stop.  I have actually talked my way out of citations (it helps having worked with cops as one point, know how they think) but in this day and age, you're not talking your way out of a DUI arrest.  Second, while I have not had a chance to look at that Supreme Court decision, those are usually very fact specific and frequently place a great deal of discretion in the trial courts to determine the ultimate admission or exclusion of that type of evidence.  There still our plenty of judges who would not be inclined to allow one's silence to be used against them.  Also, given the choice between dealing with negative inference to be drawn from such silence or a flat-out incriminating statement, most trial attorneys would be much happier to deal with the former.  

Bottom line: shut the fuck up, doing so rarely hurts whereas flappin' your jaw does much more often than not!

What you really have here are two competing rules of thumb.  

1) Do not unnecessarily annoy the guy with the gun, nightstick, and legal authority to arrest you and have you thrown in the slammer for two days on whatever charge he feels like filing with the jail. (Disturbing the peace is a favorite).

2) Do not give LE information that gives them evidence against you, or info that provides probable cause for them to obtain such evidence by force.

The best strategy is to not drink and drive. The second best strategy for me would depend on how close I thought I was to the legal limit. If I didn't want to answer the question, I probably wouldn't be silent, or invoke the fifth, but would instead get them to explain why they were detaining me (is that why you pulled me over officer, you haven't said), and if they indicated something other than DWI I would say their question was irrelevant to the purpose of their stop. (Am I required to answer that question in order for you to stop detaining me and let me be on my way?) If they indicated they were detaining for DWi suspicion I would say I won't answer any questions without an attorney.

I wish my clients did what you said. if they couldn't just shut up.

Posted By: cineaste
What you really have here are two competing rules of thumb.  
   
 1) Do not unnecessarily annoy the guy with the gun, nightstick, and legal authority to arrest you and have you thrown in the slammer for two days on whatever charge he feels like filing with the jail. (Disturbing the peace is a favorite).  
   
 2) Do not give LE information that gives them evidence against you, or info that provides probable cause for them to obtain such evidence by force.  
   
 The best strategy is to not drink and drive. The second best strategy for me would depend on how close I thought I was to the legal limit. If I didn't want to answer the question, I probably wouldn't be silent, or invoke the fifth, but would instead get them to explain why they were detaining me (is that why you pulled me over officer, you haven't said), and if they indicated something other than DWI I would say their question was irrelevant to the purpose of their stop. (Am I required to answer that question in order for you to stop detaining me and let me be on my way?) If they indicated they were detaining for DWi suspicion I would say I won't answer any questions without an attorney.

The Supreme Court is evidently carving away silence as a right prior to arrest, unless positively invoked. Prior to an arrest, they seem to want to assume that the person is just voluntarily chatting with police - that a question like "are you carrying drugs?" is as conversational as "what sort of mileage are you getting on this Camry?"

This is one reason why I think (if you may be guilty) it is better to act like an impatient asshole, as its harder to infer guilt without the officer invoking arrest powers, for which he will have to later show probable cause, and the clarity of an arrest provides better protection for fifth amendment rights.  

Police like to imply the existence of far more power than they actually have, phrasing questions like statements, asking questions unrelated to a stop, etc.

But nothing is free. Acting like an asshole may result in getting a ticket for traveling 56 in a 55, failing to properly signal when you pulled over, and him sitting in his squad car with your license for a half hour while he does unrelated paperwork, just to spite you

you can even get Drunk driving by allowance. Whether you were not in the car at all (but it was your car you borrowed) or as a sober and/or drunk passenger.

bluesbass559 reads

I am always courteous when stopped by the cops, but I will never, under any circumstances, say anything other than to verify my name and address, and perhaps ask if I'm free to go.

The linked video explains why

Is it really that hard to lie to a cop?

Cop:  "Have you had any drinks tonight?"
Driver:  "No sir, I have not."

At that point, the cop has no probable cause, unless you otherwise appear to have been drinking.  Don't ever admit to drinking even one beer, ever.   End of story.

but bear in mind, lying to LE is a serious felony.

If somehow the cop had some other way of knowing that you had been drinking, and you lie to him, he could well fry your ass if he thought it worth his time and effort.

Better, I think, to say:  "I have no statements to make on the matter.  Am I free to go?"

(still not a lawyer)

If the officer had some other way of knowing that you had been drinking, you are getting arrested anyway regardless of what you are saying.  My example was specifically meant for situations where the cop does not know that you had been drinking, unless you told him, which would therefore give him reasonable cause to arrest you.

As for your concern about lying to an officer, people get charged with that if they provide the officer a false identity or a false report of a crime or something like that.  Not if they are asked if they know how fast they were driving, and then they give the wrong answer.  As for drinking related questions, you are only lying if you remember having a drink with dinner, and then you say that you had nothing to drink.  But if you forgot that you had a drink with dinner, it isn't a lie.  

Posted By: mrfisher
but bear in mind, lying to LE is a serious felony.

If somehow the cop had some other way of knowing that you had been drinking, and you lie to him, he could well fry your ass if he thought it worth his time and effort.

Better, I think, to say:  "I have no statements to make on the matter.  Am I free to go?"

(still not a lawyer)

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