Tuesday, October 21, 2014

What should I do, or NOT do, when I have been stopped by a police officer (and I have been drinking)?

The question I am most often asked is "What should I do when I am stopped and I have been drinking?"

First, when an officer stops you, he will approach you and ask for your license, registration, and insurance. Not only is this routine, but it is a way to divide your attention. The officer is observing you to determine:

                    1. Can you retrieve these items.
                    2. How you retrieve these items.

Are you shuffling through your purse, glove box, or secret compartments? Are you fumbling and not able to grab your license? Do you grab a credit card instead? Do you hand only one of these items over? Can you even find these items?

The officer will then begin to ask you questions - again, to divide your attention. Usually an officer will ask "Have you been drinking tonight?" Chances are, you probably smell of alcohol, so you should not lie. But you should not make any admission either. The best response is "Officer, my attorney has advised me not to answer any questions." You do not lie and you do not make an incriminating statement (which can be used against you later).

Typically, at this point, the officer will ask you to step out of the vehicle. You should ask "Am I free to go, officer?" Asking this may help your attorney argue that you were under arrest at that point. When you get out of the vehicle, the officer will watch HOW you exit your vehicle. Do you use the car door? Do you stumble? When he walks you over to a "safe" spot, are you stumbling? Do you need assistance?

Once out of your vehicle, the officer will ask if you will submit to physical tests, aka Field Sobriety Tests (FSTs). These tests usually include the Horizontal Gaze Nystagmus (HGN), Walk and Turn, and One-Legged Stand. The officer might also request that you do other non-standardized tests such as Rhomberg (close your eyes, tilt your head, and count), Finger-to-Nose, and a Finger Count. REFUSE ANY FIELD TEST. You DO NOT have to take these tests. Many people mistakenly believe that you must perform these tests or your license will be suspended...this is false. These tests are voluntary, and your license will not be suspended by refusing these physical tests.

You are not required to take ANY test prior to the officer arresting you (usually you will know when you are arrested because you will be handcuffed). Therefore, there is no reason to be a witness against yourself and give the officer probable cause to arrest you. When the officer asks if you will do an "eye test" or any other test, tell the officer that you will not take any test unless mandated by law, and you are declining.

Refuse a portable breath test, aka "PBT". You do not have to submit to this test. 

The officer is likely to arrest you after you have refused all FSTs and the PBT. Clearly tell the officer "I want to speak with an attorney." You want to invoke your right to counsel because this will prevent the officer from asking you any incriminating questions. Officers routinely process DUIs and ask questions from their Alcohol Influence Report (AIR). These questions are used to gather evidence to prosecute DUIs more easily. Therefore, do NOT answer any questions.

Once arrested, the officer will either take you to a mobile processing unit or a station. The officer will ask for a breath and/or blood test (sometimes urine as well). If you refuse this test you're likely to lose your license for a year.

Under Arizona law, after an officer has placed you under arrest, you must submit to a breath and/or blood test, or suffer consequences for refusing. CONSENT to the blood and/or breath test (sometimes you will be asked to do both).  You should not refuse this test because the officer will likely obtain a search warrant and draw your blood anyways.  

Once an officer has collected a sample of your blood or breath, you are likely going to be released from custody and allowed to go home.  Call an attorney and ask for a consultation.

Try to remember these tips:

1. If you have had ANYTHING to drink, have your license, registration, and insurance easily available. You do not want to be looking for these items while an officer is watching you and building a case against you.

2. Be polite to the officer at all times, but do not make any admissions or answer any questions.

3. Do not submit to any Field Sobriety Tests or Portable Breath Tests.

4. Ask for an attorney. Be very clear.... "I want to speak to an attorney and I will not answer any questions."

5. Submit to a breath and/or blood test AFTER you are placed under arrest.

Visit: www.MichelleBellLaw.com