Dui Guilt Myth -- Chapter 7

Chapter 7 DWI Lawyer Bob Keefer: DUI Guilt Myth

 CHAPTER 7

"I’VE BEEN ARRESTED AND TAKEN TO THE POLICE STATION –

WHAT HAPPENS NOW?"

You have been arrested. Your car has been towed away, or driven home by a passenger or other person who the officer determines is not impaired. Remember that you will still be under observation from the time you get in the police vehicle until you are released, and anything you say or do is noted and placed in a police report.

The best thing you can do is to be cooperative and pay attention—both to what you are told and what you are asked to do. In order to collect viable evidence to be presented at trial, the police must follow very specific rules and procedures. No matter how competent an attorney you get, he or she will not have been with you when you arrive at the police station, so it is up to you to know if your rights have been violated or if these procedures have not been followed. This knowledge could make all the difference at trial.

The primary reasons why you have been taken to the police station—besides the required paperwork, fingerprinting, etc.—is for you to take a more "scientific" test of your blood alcohol level, one that can be used as evidence in court. Because of the time constraints on taking a proper test, this is almost always the first order of business once you arrive at the police station.

"Can I refuse to take a test?"

There are situations where you could refuse a test, but these situations are rare. If you already gave a sample that provided a valid result, you can refuse to take a second test. But if the officer suspects that you are under the influence of a drug or other substance, which breath tests cannot detect, then you can be required to take a second test. Lastly, if you have a physical disability that makes it impossible to take a test, you may be excused from the requirement, but it is up to you to tell the officer of your disability so that a different type of test can be arranged, if possible.

Aside from these special circumstances, refusing to take a test can have severe consequences and is usually not the wisest course of action. Most States have an "Implied Consent" law. "Implied Consent" means that, simply by driving, you have already given your consent to a test. Going back on your "implied consent" by refusing to take a test will usually mean that your license will be revoked for a longer period of time. The fact of your refusal can also be a damaging piece of evidence at trial. That being said, it is up to you to weigh the potential negative consequences of refusing to take the test against the possibility of a test result that registers above the legal limit.

When the officer asks you to provide a specimen, you will be read an advisory informing you of your rights and the consequences of taking or refusing to take a test. If the officer does not accurately communicate your rights—if the officer misleads you, misinforms you, exaggerates the consequences of refusing to take the test or makes any threats or inducements to take the test—a judge may decide to throw out the evidence against you. So pay attention to what you hear so you can eventually discuss it with your lawyer.

"What kind of test should I take—blood, breath or urine?"

You probably will not be given a choice between three types of tests, but you may have to choose between two. The most accurate is the blood test and the least is urinalysis. This means that, if you are fairly certain you are below the legal limit, you should take the most accurate test to prove it. If, on the other hand, you believe it is likely that your blood alcohol is above the legal limit, the urinalysis test would be the most easily attacked in court.

"What do I need to know about the Breath Test?"

The breath test is the most common test that people are asked to take once they are taken to the police station, but it is also highly susceptible to error. If the test is not taken just right, then it will not accurately measure your blood alcohol concentration and your lawyer may be able to persuade the judge to throw it out. Below is a list of factors that can make a breath test unreliable. We will examine each of these factors in detail in the next chapter.

• Calibration of the Machine

•Residual Alcohol in the Mouth

• Belching, Hiccupping or Vomiting Prior to a Test

• The Temperature of Your Breath

• How Fast Your Body Eliminates the Alcohol

• Other Chemical Compounds in Your Mouth

"What about a lawyer?"

You may and should ask to see a lawyer as soon as you arrive at the police station. Because you are now under arrest—where anything you say might be used against you—you should not say anything without a lawyer present or until you have talked to a lawyer.

Within a reasonable time after your arrest or booking at the jail, you have the right to make a local phone call to a lawyer, bail bondsman and/or any relative or other person. The police may not listen to the call to the lawyer and any communications made to your lawyer. Your call should be discrete and made in such a way that you cannot be overheard by any other person. Pay attention to your surroundings when you make the call and notice if the police or anyone else can overhear the conversation.

"When will I be released?"

Before you are released, the police will contact a judge who decides whether you will be released without bail, with bail or kept in custody. Most likely, you will be released without bail and you will be given paperwork telling you when your next court date is and where the Court is located. This is called being released "on your own recognizance."

If the judge decides to set bail instead, you will be given additional paperwork. When you are released you should contact a lawyer regarding the possibility of lowering your bail or being released on your own recognizance instead.

If the judge decides not to release you, you must be taken before the Judge on the next available Court day after your arrest. Generally speaking, this will occur within 48 hours of your arrest, whether you were arrested on the weekend or any other day during the week. If you are in custody when you appear in Court for the first time, the judge must decide whether to adjust your bail or release you on your own recognizance. The judge will consider several factors when making this decision, including the charges filed against you, your living arrangements, your employment, your family considerations, prior criminal record, probation status, and any other reasons why you should or should not be released.

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