Post by RS Davis on Sept 7, 2004 10:51:06 GMT -5
On STLToday, Rumblefish (an attorney) posted a great and informative message. Since I have as yet been able to drag him over here, I am going to repost his message in its entirety:
Well, this is the weekend for them, so a few words.
(The following is intended for information and discussion purposes only, not - repeat NOT - as legal advice. No attorney-client relationship is created by this post. If you want legal advice, please consult an attorney - especially one NOT named Rumblefish).
If you drink, don't drive.
REPEAT: IF YOU DRINK DON'T DRIVE.
If - like a lot of people - you do have a few beers/wines or whatever, remember the legal limit for intoxication in Missouri is a BAC of 0.08% or higher.
If - like some people - you do have 1or two beers/wines, drive AND you encounter a sobriety checkpoint and you are asked whether you've had anything to drink - and you HAVE been drinking - remember: YOU DO NOT HAVE TO ANSWER THIS QUESTION!!!
Note, if you answered honestly - you might incriminate yourself. The 5th Amendment says you don't have to incriminate yourself through such questioning, so you are well within your Constitutional rights in refusing to answer this question. Acceptable responses to this question (i.e., "have you had anything to drink tonight") include:
1. Ask the officer why you're being stopped (EVEN if you know it's a sobriety checkpoint). Inform the officer - politely - that you do not wish to be detained any further. Keep repeating this even if the officer says things like "that's not what I asked you" or "how much have you had to drink."
2. Ask the officer why you're being stopped (EVEN if you know it's a sobriety checkpoint). Inform the officer- politely - that you'd like to speak to an attorney before answering any questions.
3. If TRUTHFULLY you've only had 1 or 2 beers/glasses of wine or whatever and you believe you are not legally intoxicated (BAC of 0.08%), then tell the officer you've only had 1 or 2 beers/glasses of wine or whatever.
It is very likely that ANY answer OTHER than "No, I have had nothing to drink" will get you pulled over to the side of the road for further scrutiny. That's ok, though - because (in all likelihood) the checkpoint officer doesn't have sufficient probable cause to arrest you for DWI - YET. At best, he only has grounds to investigate you further.
If you get directed to pull to the side of the road, you MUST produce your driver's license and insurance card to the officer. (REMEMBER: the officer will be watching for any difficulty you have in retrieving your wallet as a sign of intoxication).
You MUST also exit the vehicle if asked by the officer. (REMEMBER: the officer will look to see if you stumble getting out of your car as evidence of intoxication).
In Missouri, however, you do NOT have to perform any of the Field Sobriety Tests (FST) - i.e., stand on one leg; horizontal gaze nystagmus; turn and walk; touch your nose, etc.). Refusing to perform a FST does NOT result in an administrative suspension of your driving license - these tests are NOT covered under Missouri's implied consent (to chemical testing) statute.
You do NOT have to give a reason for not taking the FST. It's is merely your Constitutional right, not to do so. If pressed, you might inform the officer that you believe that the test results are reliable only when given under *ideal* conditions (daylight, on a flat, dry surface) - conditions which you are unlikely to have on the side of the road at a checkpoint. Or you can say that your are simply tired and believe your fatigue may give an inaccurate result.
By POLITELY (yet firmly) refusing to take the FST, you are merely depriving the officer of an opportunity to gather any more evidence that you are likely intoxicated beyond the legal limit.
The officer may tell you that he/she is just asking you to "prove that you are not intoxicated," but you do NOT have to prove that your NOT intoxicated . . . instead, the police officer has to decide whether probable cause exists that you ARE intoxicated and - ultimately - the police officer (and prosecutor) must prove that you ARE intoxicated.
You do NOT have to perform a PORTABLE breathalyzer test that many police officers have in their vehicles. Again, this test - since the machines are unreliable and are not routinely calibrated - are not covered by Missouri's implied consent law and, therefore, refusing to blow into the PORTABLE units does not result in an automatic suspension of your license.
NOTE: Police officers *may* tell you that the PORTABLE test results are not admissable in court. This is only PARTIALLY TRUE!!
The BAC numbers of the Portable test cannot be used to establish intoxication. That is, if you blow a 0.081% on the Portable machine, the BAC number (0.081%) cannot be used to prove that your BAC was 0.081%. The results of the Portable test, however, CAN be introduced to establish that the police officer had *probable cause* to arrest you for DWI. That is, the suspect blew a 0.081% on the portable test, therefore, the police officer had probable cause to believe that the suspect was intoxicated (0.08% or higher) and can be arrested and brought to the station for additional testing.
At this point, if you do NOT do the FST or take the PORTABLE breathalyzer test AND you demonstrate only very minimal signs that you MIGHT be intoxicated (i.e. watery eyes; a vague smell of alcohol)you stand a very good chance of being let free.
If you ARE arrested and taken back to the station, you should know somethings about the "stationary" breathalyzer test (by stationary, I mean the one that doesn't look like it leaves the station even if it could be easily transported about).
First, the operator must wait and observe you for 15 minutes before administering the test - to make sure that anything you may have consumed doesn't effect the results.
Second, you have the *statutory right* to call - or try to call - an attorney for advice. By law, you have 20 minutes to so do. You should use the entire amount of time alloted to try to contact or consult with an attorney.
Again, if you are close to the legal limit, the additional delay *may* work in your favor (i.e., lower your BAC).
After all this you *MAY* refuse to take the "stationary" breathalyzer test (I use "stationary" only to mean "the one that doesn't leave the station" even if it looks portable). Many attorneys - but not all - would *generally* advise their clients not to take the stationary breathalyzer test because it means LESS evidence for the prosecutor to work with in a criminal case.
Refusing to take the stationary breathalyzer test, however, WILL result in a suspension of your driver's license. Consult with your attorney for further information about adminstrative suspensions.
REMEMBER: Always be polite and courteous to police officers. They are just doing their jobs. You CAN protect your rights AND be polite (yet firm) in your refusal to take a FST or PORTABLE breathalyzer. No need to be rude, arrogant, combative or belligerent.
Again: If you drink, don't drive. But, if - despite not following the advice not to drink and drive - you do drink and drive, then you should remember some of the points discussed in this post.
Have a SAFE Labor Day weekend.
Rumblefish
Well, this is the weekend for them, so a few words.
(The following is intended for information and discussion purposes only, not - repeat NOT - as legal advice. No attorney-client relationship is created by this post. If you want legal advice, please consult an attorney - especially one NOT named Rumblefish).
If you drink, don't drive.
REPEAT: IF YOU DRINK DON'T DRIVE.
If - like a lot of people - you do have a few beers/wines or whatever, remember the legal limit for intoxication in Missouri is a BAC of 0.08% or higher.
If - like some people - you do have 1or two beers/wines, drive AND you encounter a sobriety checkpoint and you are asked whether you've had anything to drink - and you HAVE been drinking - remember: YOU DO NOT HAVE TO ANSWER THIS QUESTION!!!
Note, if you answered honestly - you might incriminate yourself. The 5th Amendment says you don't have to incriminate yourself through such questioning, so you are well within your Constitutional rights in refusing to answer this question. Acceptable responses to this question (i.e., "have you had anything to drink tonight") include:
1. Ask the officer why you're being stopped (EVEN if you know it's a sobriety checkpoint). Inform the officer - politely - that you do not wish to be detained any further. Keep repeating this even if the officer says things like "that's not what I asked you" or "how much have you had to drink."
2. Ask the officer why you're being stopped (EVEN if you know it's a sobriety checkpoint). Inform the officer- politely - that you'd like to speak to an attorney before answering any questions.
3. If TRUTHFULLY you've only had 1 or 2 beers/glasses of wine or whatever and you believe you are not legally intoxicated (BAC of 0.08%), then tell the officer you've only had 1 or 2 beers/glasses of wine or whatever.
It is very likely that ANY answer OTHER than "No, I have had nothing to drink" will get you pulled over to the side of the road for further scrutiny. That's ok, though - because (in all likelihood) the checkpoint officer doesn't have sufficient probable cause to arrest you for DWI - YET. At best, he only has grounds to investigate you further.
If you get directed to pull to the side of the road, you MUST produce your driver's license and insurance card to the officer. (REMEMBER: the officer will be watching for any difficulty you have in retrieving your wallet as a sign of intoxication).
You MUST also exit the vehicle if asked by the officer. (REMEMBER: the officer will look to see if you stumble getting out of your car as evidence of intoxication).
In Missouri, however, you do NOT have to perform any of the Field Sobriety Tests (FST) - i.e., stand on one leg; horizontal gaze nystagmus; turn and walk; touch your nose, etc.). Refusing to perform a FST does NOT result in an administrative suspension of your driving license - these tests are NOT covered under Missouri's implied consent (to chemical testing) statute.
You do NOT have to give a reason for not taking the FST. It's is merely your Constitutional right, not to do so. If pressed, you might inform the officer that you believe that the test results are reliable only when given under *ideal* conditions (daylight, on a flat, dry surface) - conditions which you are unlikely to have on the side of the road at a checkpoint. Or you can say that your are simply tired and believe your fatigue may give an inaccurate result.
By POLITELY (yet firmly) refusing to take the FST, you are merely depriving the officer of an opportunity to gather any more evidence that you are likely intoxicated beyond the legal limit.
The officer may tell you that he/she is just asking you to "prove that you are not intoxicated," but you do NOT have to prove that your NOT intoxicated . . . instead, the police officer has to decide whether probable cause exists that you ARE intoxicated and - ultimately - the police officer (and prosecutor) must prove that you ARE intoxicated.
You do NOT have to perform a PORTABLE breathalyzer test that many police officers have in their vehicles. Again, this test - since the machines are unreliable and are not routinely calibrated - are not covered by Missouri's implied consent law and, therefore, refusing to blow into the PORTABLE units does not result in an automatic suspension of your license.
NOTE: Police officers *may* tell you that the PORTABLE test results are not admissable in court. This is only PARTIALLY TRUE!!
The BAC numbers of the Portable test cannot be used to establish intoxication. That is, if you blow a 0.081% on the Portable machine, the BAC number (0.081%) cannot be used to prove that your BAC was 0.081%. The results of the Portable test, however, CAN be introduced to establish that the police officer had *probable cause* to arrest you for DWI. That is, the suspect blew a 0.081% on the portable test, therefore, the police officer had probable cause to believe that the suspect was intoxicated (0.08% or higher) and can be arrested and brought to the station for additional testing.
At this point, if you do NOT do the FST or take the PORTABLE breathalyzer test AND you demonstrate only very minimal signs that you MIGHT be intoxicated (i.e. watery eyes; a vague smell of alcohol)you stand a very good chance of being let free.
If you ARE arrested and taken back to the station, you should know somethings about the "stationary" breathalyzer test (by stationary, I mean the one that doesn't look like it leaves the station even if it could be easily transported about).
First, the operator must wait and observe you for 15 minutes before administering the test - to make sure that anything you may have consumed doesn't effect the results.
Second, you have the *statutory right* to call - or try to call - an attorney for advice. By law, you have 20 minutes to so do. You should use the entire amount of time alloted to try to contact or consult with an attorney.
Again, if you are close to the legal limit, the additional delay *may* work in your favor (i.e., lower your BAC).
After all this you *MAY* refuse to take the "stationary" breathalyzer test (I use "stationary" only to mean "the one that doesn't leave the station" even if it looks portable). Many attorneys - but not all - would *generally* advise their clients not to take the stationary breathalyzer test because it means LESS evidence for the prosecutor to work with in a criminal case.
Refusing to take the stationary breathalyzer test, however, WILL result in a suspension of your driver's license. Consult with your attorney for further information about adminstrative suspensions.
REMEMBER: Always be polite and courteous to police officers. They are just doing their jobs. You CAN protect your rights AND be polite (yet firm) in your refusal to take a FST or PORTABLE breathalyzer. No need to be rude, arrogant, combative or belligerent.
Again: If you drink, don't drive. But, if - despite not following the advice not to drink and drive - you do drink and drive, then you should remember some of the points discussed in this post.
Have a SAFE Labor Day weekend.
Rumblefish
