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The Arrest
Q. What should I do if the police arrest me?
A. Better to discuss what you shouldn't do. Do not:
• speak to anyone about your case;
• answer police queries or waive your right to advice of counsel;
• submit to a lineup or any kind of tests without your lawyer;
• dodge news photographers or cover your face (looks guilty);
• be impolite to the police.
Some people cooperate with the police by making statements in the hope
that the
officer will let them go. Remember that once you have been arrested you
will be charged
with an offense, and any statements you make, if incriminating, will be
used against you.
Q. What do I tell my lawyer while I'm in custody?
A. Be prepared to tell your attorney where the police have taken
you, where the arrest
occurred and if it was made by uniformed or plainclothes police, the charges
against you,
and the amount of bail you can afford.
Q. If the police arrest me and issue a citation, can I dispose
of the case in a noncriminal way?
A. No. Once you've been arrested, you must go through the criminal
process.
Sidebar: Driving Under the Influence
Statistics indicate that at least one-third of all drivers involved in
fatal accidents were
alcohol impaired at the time. Groups such as Mothers Against Drunk Driving
and
legislators are spearheading a nationwide crackdown on drunk drivers that
includes
passage of tougher laws, including every state hiking the legal drinking
age to twenty-one.
Although it is a traffic offense, drunk driving is classified as criminal
in the ordinary sense
of prohibited conduct willfully undertaken
.Q. How come police never say "you're under arrest for drunk
driving?"
A. Different states call the offense different names. These include
driving under the
influence (DUI), operating under the influence (OUI), and driving while
intoxicated
(DWI).
Q. Does the language really matter?
A. Yes, "operating" jurisdictions (those charging OUI),
for example, do not require that
the vehicle be in motion. In most states a person may be charged with
OUI if he or she is
in actual physical control. Actual physical control may be shown when
the person is
seated in the driver's seat, in possession of the ignition key, and capable
of starting the
motor.
Q. What does "drunk driving" mean?
A. The elements of the offense vary from one state to another.
However, the Uniform
Vehicle Code says proof is necessary that the person is under the influence
of alcohol or
drugs. Most states agree that a person is under the influence if he or
she is less able, either
physically or mentally, to exercise clear judgment and to operate a vehicle
with safety. As
noted above, the person must be driving or in actual physical control
of a vehicle. If a
particular state's statute includes language such as "on a public
highway" or "intoxicating
liquor," the state also must prove that point. Some states treat
"driving while impaired by
alcohol" as a lesser offense of DWI.
Q. How does the state prove its DWI case?
A. The prosecution relies heavily, sometimes solely, on the arresting
officer's testimony
about the offending vehicle's operation and the defendant's behavior (observations
of the
defendant's appearance, speech, and an odor of alcohol), and results of
field sobriety tests
and chemical tests (breath, blood, or urine). The officer might say, "The
car was weaving
over the center line of the highway," or "The driver had slurred
speech, heavy odor of
alcohol, glassy bloodshot eyes, and could not walk straight.
Q. May the police force me to give a sample of my blood or my
breath?
A. Every state has "implied consent" laws for chemical
testing of intoxication. The law
views people who have a driver's license as automatically agreeing to
submit to blood,
breath, or urine tests to determine whether they are sober. In 1983, the
U.S. Supreme
Court ruled that a driver may be forced to submit to a blood alcohol test
without the
driver's consent or a warrant and without violating the driver's right
against selfincrimination
if the driver has already been arrested for another offense, such as vehicular
homicide; the driver's blood has already been taken for another purpose,
such as medical
care; and such action is permissible under the state's implied consent
law.
While police generally will not compel you to submit to a blood test,
the Supreme
Court decision discussed in the previous paragraph permits a blood test
taken by force so
long as the officer has probable cause to believe that you are under the
influence.
If you can refuse to take the test, should you? There is no hard and fast
answer to that
question.
On the one hand, unless you are certain that you have had less than three
or four drinks
in the past hour, or less than five drinks in the past several hours,
common wisdom holds
that it is a good idea to refuse the tests. It generally is more difficult
to convict a driver of
drunk driving if no field sobriety or chemical tests are taken.
On the other hand, if you refuse to take a breath testing device test,
your driver's
license probably will be suspended automatically for a long period of
time. In some states,
for example, it will be suspended for six months, but only three months
if you take and fail
the test (if you are a first offender).
Q. What are field sobriety tests?
A. Every police department has its own preferred tests. The police
may ask you to do
several things after you have gotten out of the vehicle, such as standing
on one foot for a
specified time or walking a straight line. The police also may ask you
to touch your nose
with your index finger with your eyes closed and head back, and have you
stare at a
flashlight or a pen so that the officer can see how your eyes respond.
Q. Suppose I fail the tests?
A. It is not like school. You cannot promise to study harder
next time. A skilled lawyer,
however, may challenge whether the police administered the tests properly,
or whether the
tests effectively measure what they intend to. In addition, a lawyer may
present qualifying
evidence. For instance, a chronic knee injury may prevent you from supporting
your
weight on one foot.
Q. How does a breath testing device work?
A. The person blows into the machine, which measures the percentage
of alcohol in the
person's body. The law considers a standard measure as legally intoxicated.
This measure
might be .10 (one-tenth of one percent blood-alcohol concentration), or
.08, depending on
the state. The rules vary from one state to another. However, the law
often entitles the
defendant to two breath tests that must measure within .02 (or some other
percentage) of
each other.
Q. If the breath-testing device hits .10, am I in serious trouble?
A. Probably, but a lawyer may show that the machine's operator
received inadequate
training, the operator's certification has lapsed, or the operator did
not maintain the
machine well. Other factors may also affect the breath testing device
reading and may be
established through an expert witness. Diabetics, for example, have high
levels of ketone
(a naturally occurring chemical), which could yield false results when
diabetics are tested.
However, in most cases the result of a breath test will be allowed into
evidence.
Q. May I change my mind after declining to take a blood or breath
test?
A. There is no right for a person to change his mind once he
or she has refused. The law
still considers a change of heart as a refusal so far as it concerns a
license suspension. It is
a good idea to call a lawyer while you are thinking over a decision, if
the police allow you
to do so. However, unless you have a statutory right to a lawyer in your
state, which could
delay the test for several hours while the attorney is en route to the
police station, you will
have to decide whether to submit to the test fairly soon after being asked
to do so. In some
states, you must immediately decide.
The Nationwide Crackdown on Drunk Driving
Tragic stories of victims killed by drunk drivers proliferate in the
news media. The ranks
of groups, such as Mothers Against Drunk Driving (M.A.D.D.) and Students
Against
Destructive Decisions (formerly Students Against Drunk Driving [S.A.D.D]),
continue to
swell. State legislatures have responded by introducing harsh new
drunk driving laws at a
dizzying clip. Society is no longer satisfied with giving offenders
a slap on the wrist when
it comes to drunk driving. See websites for MADD (http://www.madd.org/)
and SADD
(http://www.saddonline.com/)
The legal drinking age is twenty-one in every state in the Union.
In addition, the majority
of our states have enacted so-called "per se" laws, which
prohibit a person from driving an
automobile if the person has a blood-alcohol reading of a certain
amount or more. When
the per se law is used, the prosecution need not show that the person
is under the
influence. Rather, the prosecution need only prove that the person
was driving and
showing a blood-alcohol reading of the certain amount or more at the
time. A blood
alcohol reading of .10 remains the legal presumptive level of intoxication
in some states,
but a growing number of states have lowered their per se limit to
.08.
Another trend nationwide among legislatures is to pass laws that create
harsher penalties
for higher breath testing device results. Some states provide for
enhanced penalties for
blood alcohol readings of .20 and higher. Other states have created
lesser offenses, such as
driving "impaired," with a blood alcohol level of .07.
In civil courts throughout the country, "dram shop" cases
and "social host" cases are
gaining wider acceptance, and expanding the liability for negligence.
Taverns, restaurants,
and individuals who furnish alcohol to intoxicated persons knowing
that they are likely to
drive are liable to third persons who are injured as a result of the
conduct of the
intoxicated individual. |
Q. What kind of penalty am I likely to get for DWI?
A. Consult a lawyer in your state because penalties vary widely
and depend on several
factors, such as whether you are a repeat offender. A number of states
require minimum
penalties for first-time offenders, for example, which might involve enrollment
in an
alcohol treatment program and a license suspension of a month or so. A
second-time
offender might suffer a two-year license suspension or revocation of license.
Some states
impound the license plates or vehicles of habitual drunk drivers, and
others revoke the
licenses of habitual offenders.
This is an extremely volatile area of the law. Jail terms for first offenders
are more
common than they used to be. Community service and enrollment in mandatory
alcohol
programs, as well as heavy fines, are doled out by courts in various combinations
with
regularity as a result of changing public perceptions about drunk driving
and the efforts of
highly visible groups such as Mothers Against Drunk Driving.
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