December 21, 2015
Atty. Michael D. Evans,
The Evans Firm, Centennial, CO
The topic of this article is to provide practical, useful advice if you
are stopped by the police during the holiday season for DUI.
First and foremost, we don’t encourage criminal behavior such as
drinking and driving. However, most of us will go to a holiday party,
or even simple dinner, and enjoy a beverage or two.
It doesn’t make us bad people. We just need to be reasonable. Doing things like not trying ‘new’
types of alcohol, setting a limit and sticking to it, and waiting 1 to
1.5 hours after our last drink before we leave (like eating before swimming)
can help us to avoid negative situations.
Unfortunately, of all the thousands of people who will drink before driving
this during the holidays, some of us inevitably will be unlucky enough
to be stopped by police on our drive home for suspicion of driving under
the influence, or DUI.
Here are the easy to remember steps to follow that will prevent you from
making things worse:
THINK BEFORE YOU SPEAK. One of the first questions the police officer will ask will be related
to you drinking alcoholic beverages. It may even come be before you are
asked for your license and insurance. The question will be some version
of: “Have you been drinking tonight?” or “How many drinks
have you had tonight?” or “Have you had anything to drink?”
DO NOT ANSWER THIS QUESTION!
In any DUI case, (and we have done thousands),
the people that answer this question just supplied the worst fact in the
case – a confession. In other words, no matter how hard your attorney fights your case, or
disputes the breath or blood results, there will always be this statement
in evidence which the jury will hear. Colorado law does not consider a
traffic stop an arrest in most cases. Instead, it’s considered something
less called an ‘investigatory detention’. Because it’s
not technically an ‘arrest’, then you are not required to
be read your Miranda rights by police – which are specifically designed
to inform you that you are about to screw yourself, and you should shut
your mouth and ask for an attorney. Because police don’t have to
give you your Miranda rights, they don’t – and won’t.
They hope you answer this question, which will be deemed a voluntary confession.
Not answering the police officer’s question is
not dishonest behavior. It is simply a matter of invoking your constitutional
rights and protecting yourself. You need to be your own advocate. You
are afforded both the Fifth Amendment and Sixth Amendment rights and freedoms
– something our military has fought very hard to protect throughout
the history of our country. Use them, don’t lose them.
In fact, one could argue that not using them is the real disservice.
The Fifth Amendment includes your right not to be convicted of any crime
based upon any statement
- The Sixth Amendment includes your right to an attorney in any stage of
a criminal proceeding. A DUI is a criminal proceeding.
Not answering the police officer’s question
WILL very likely irritate or anger the police officer. As figures of authority, they do not like being challenged. Be prepared
for this. They may try to bully an answer out of you, or make you feel
like you or stupid or did something wrong. This may include threatening arrest.
Don’t worry, stay calm. You have rights under the law, even if at the moment you feel pressured
or scared. You will likely be arrested anyway, so breaking your silence
isn’t going to save you. It just makes things worse.
INVOKE YOUR RIGHTS. When asked the question about drinking alcohol, use this simple response
– and say it as many times as you have to: “Officer, respectfully I invoke my Fifth and Sixth Amendment rights”.
- Saying it like this takes some of the fire out of the police officer. They
may leave you alone and move on.
It also prohibits (legally speaking) the officer from continuing to question
you, or using any statement thereafter against you in court. Of course,
many police officer’s won’t care and will continue to question
you – but the fact that you say this specific phrase is like
magical pixie dust in a courtroom.
- It also prohibits the prosecutor from trying to use your silence as an
admission of guilt. There are a few cases where courts have allowed a
defendant’s silence to be admitted at trial to infer guilt. While
this is a rare exception, saying this phrase is certainly not silence.
STAY CALM AND CONVICTED. The police officer may try to confuse or correct you by saying “Sir,
you are not entitled to a lawyer at this point” or “Madam,
you are not afforded that right at this time”. This should be a
big red flag for you, and further reinforce your commitment to repeat
the mantra. Again, the police officer may become irritated or angry and
threaten arrest. Stay the course. You are in the right. Talking is not
going to get you out of an arrest. 90% of people stopped for DUI are arrested,
whether they make statements or not. Just accept that fact and don’t
make things worse for you.
REFUSE VOLUNTARY ROADSIDE TESTS. This battery of tests and maneuvers are designed to make you fail and
look drunk to the jury. Seriously! They greatly lack in scientific value.
Here is what I tell my clients - if you were to do these tests the way
the police want you to in your own living room, you could not successfully
pass the roadside tests.
- Starting early is deemed a failure.
- Not listening to directions spoken to you at a fast pace under extreme
stress is deemed a failure.
- Asking questions to clarify what you just heard is deemed a failure.
- Raising your arm more than six inches from your waist while standing on
one leg to catch your balance is deemed a failure.
- Missing a heel touch is a failure.
- Taking too many or too little steps before turning is a failure.
- And forget saying the alphabet backwards.
Many times on closing argument I encourage jurors to try and do these roadside
tests on their own in the deliberation room, with the lights off. Then
I tell them to imagine doing them outside, in the cold, on the side of
a highway with cars going by. They get the point.
CHOOSE BREATH. Once you refuse to do voluntary roadside maneuvers, the police are required
to give you the option of blood or breath for alcohol intoxication (blood
for drug intoxication). Blood tests are hard to beat in the courtroom.
The science is usually solid, and so is the manner of collection and preservation.
Breath tests, on the other hand, are riddled with holes. Many things can
cause a breath test to give inaccurate results. Improper calibration,
improper operation, mouth alcohol, and others.
Note: If you think your blood alcohol content (BAC) is going to be very high
and you know should not have been drinking, then you need to consider
whether to take a blood or breath test at all. You cannot be forced to
provide one – but it comes at a very hefty price of
losing your license for one year. So in other words, while refusing a chemical test may help limit damaging
evidence in your criminal case, it may hurt your privilege to drive. Choose
wisely. DUI criminal convictions can carry up to 12 months in jail and
12 points on your license.
About The Author:
Attorney Michael D. Evans practices in Colorado and handles criminal defense, HOA law, wrongful
death, landlord tenant, and criminal record sealing cases. The Evans Firm
is based in Centennial, Colorado. Mr. Evans have been featured and published
nationally including TIME Magazine, The New York Times, CNN, The Wall
Street Journal, CNBC, MSN, NPR, ABA, The Denver Post, CPR, The Huffington
Post, BuzzFeed, and many others. Mr. Evans has conducted over 58 jury
trials in 8 years, many appeals, and has consistently earned a 9.8 Superb
AVVO rating and 2015 Client's Choice Award, and an A+ rating with
the BBB. He is also a member of the Colorado Bar Association, American
Bar Association, Colorado Trial Lawyers Association, and the Colorado
and National Association of Criminal Defense Lawyers, just to name a few.
For Michael Evans, being a lawyer is not just a career—it’s
his heart-felt passion. He has represented literally thousands of satisfied
clients in the courtroom. He was trained by some of the best lawyers in
the state at the Denver Public Defender Office and has attended the National
Institute for Trial Advocacy, NITA. He is an avid and tenacious litigator
both in and out of the court.