Know About DUIs

by Tim Baldwin

A DUI conviction can disrupt your life in more than one way, not the least of which is the stress is causes you and your family. Most people do not realize the number of issues that arise in a DUI case. For example, there are stop, search and seizure, consent, and breath test issues. And in many cases, the issues can work favorably for you. That is why you should contact an attorney who practices in criminal law and particularly in DUI cases.

Here are a few things to keep in mind if you are ever stopped and arrested for a DUI:

  1. Consent. When you consent to giving evidence (i.e. making statements, performing field sobriety exercises, giving breath samples) to the officer, you waive your rights to suppress that evidence had you not consented. Keep in mind, Montana law gives the officer the right to ask for your name, driver license, registration and proof of insurance upon a lawful stop. From there, if the officer observes indicators of impairment, he will begin his DUI investigation by asking you usual questions (i.e. have you been drinking? Where are you coming from? etc.). He is seeking evidence to build a DUI case. Eventually,  if the officer believes he has obtained enough facts of impairment, he will ask you to exit the vehicle and perform field sobriety exercises. And then he will ask you to give a breath sample (see below). If you decide you to do not consent to answering questions, performing FSEs, or giving a breath sample, you must inform the officer at that time that you do not consent. If the officer asks you to sign a rights waiver, do not sign if you want to reserve your right not to consent.
  2. Breath Test Before Arrest. Montana law states that every driver who drives on the public ways implicitly consents to giving an officer a preliminary breath test (PBT) where the officer has particularized suspicion that the driver is driving while impaired by alcohol. If you refuse to give a breath sample, your license will be automatically suspended according to the law (with the right of appeal, of course). Keep in mind that the PBT can be used to form probable cause for your arrest but in most cases cannot be introduced as evidence at trial.
  3. Breath Test After Arrest. Montana law also states that every driver implicitly consents to giving a breath test after arrest to determine the blood alcohol content. If you refuse, your driver license will be suspended automatically (with the right of appeal, of course). If you consent to the breath test, the results can and will be used as evidence against you, unless the consent was obtained illegally.
  4. Inference of Impairment. If you refuse to give a breath test after arrest and your case goes to trial, the court will instruct the jury that they may infer from your refusal that you were under the influence. However, the inference is rebuttable; that is, you can rebut that inference.
  5. Actual Control of Vehicle. Montana law does not require that you be actually driving to be convicted of DUI. Rather, you only have to be in “actual physical control” of the vehicle while you were impaired. Thus, if you are in the driver’s seat while impaired with the keys near you for access, you could be arrested and perhaps found guilty.
  6. Evidence. The main evidence the prosecutor uses to convict a defendant of DUI are: (a) the officer’s observations of the driver (i.e. smell of alcohol, watery eyes, slurred speech, FSE, etc.), (b) video and audio of the stop and investigation, and (c) results from the breath test. The less you are exposed to each of those categories, the weaker the DUI case is and the more likely the chances of getting the charge reduced, dismissed or acquitted.

If you have been arrested for DUI, email Tim Baldwin at timbaldwin@outlook.com.

Reasonable Cause to Investigate Crimes: Protect Yourself

by Tim Baldwin

In state and federal jurisdictions, police cannot investigate supposed or perceived criminal activities without reasonable suspicion or cause. If police violate this rule of law and arrest you, you can move the court to suppress evidence and potentially dismiss the action against you. Your rights in this area are powerful protections against arbitrary government power in favor of individual liberty.

However, depending on the judge looking at the issue, “reasonable” cause may be an uphill battle because it is based heavily on the circumstances. A judge who wants to find “reasonable” cause will try hard to find it in the facts. If there are questions of credibility at a suppression or dismissal hearing, this kind of judge will find police credible and find no reason to disbelieve their version of the facts, even if the defendant testifies to the contrary.

This puts you in a position of having to defend yourself before a jury (a risky move), instead of getting the case dismissed pretrial (a safer move). This means that every person confronted with police action should know how to protect himself from police, prosecutors and judges who have the facts and law wrong.

What should you do when confronted by an officer who wants to investigate a crime? The following are basic, yet fundamental ways to respond to the officer. In essence, these are your rights as state and federal citizens.

First, always be respectful to the officer. Even if you are absolutely in the right in a given situation, you will not help yourself by being rude, arrogant and disrespectful to the officer. If the officer does not like you or does not like you invoking your rights, let him be the bad actor, not you. The reasons are many, but there is one heavy reason: if your case goes to a trial or hearing, you want the judge or jury to like you. Credibility is tremendously important in every case. Do not ruin your credibility by looking like a jackass.

Second, know why the officer is making contact with you. In many (if not all) states, the law requires police to inform you of the reason he stopped you. But if he does not inform you, you need to find out yourself.

Either the officer is investigating a crime or not. If he is investigating a crime, you have the right to remain silent. If he is not investigating a crime, you still have the right to remain silent. In either case, you have the right to remain silent. But anytime an officer stops you, you should find out immediately if he suspects you of a crime. Immediately upon a stop, ask him:

Officer, do you suspect me of committing a crime?

If the officer suspects you of committing a crime, he must tell you. If he does suspect you of committing a crime, do not aid the police by answering his questions without an attorney present. Invoke your right to remain silent and ask for your attorney to be present. If police persist to ask questions, continue to invoke your right to remain silent.

If the officer does not suspect you of committing a crime, police have no right to detain you without your consent. This means you have the liberty to leave and not answer any questions. So, find out immediately if police are detaining you. Ask the officer,

Am I being detained?

or

Am I free to leave?

If the officer says you are being detained or you are not free to leave, you may again ask,

What crime do you suspect me of committing?

If the officer informs you that you are not suspected of committing a crime or that you are  not being detained, then you are free to leave.

Third, if the officer informs you that either he suspects you of a crime or you are being detained, invoke your right to remain silent. So, when the officer asks you questions that could be used against you, you may tell the officer,

Officer, since you say you suspect me of a crime or since you are detaining me, I am invoking my right to remain silent and am requesting my attorney be present before I answer any questions.

 

If the officer persists in asking you questions, continue to invoke your right to remain silent and to an attorney. Remember, invoking your right to remain silent can never be used against you at trial, nor is it a basis for arrest. Remember too, never abandon your rights for fear of being arrested. If you are arrested without probable cause, that arrest is illegal. Any prosecution that results is illegal. Your attorney should be able to get the case dismissed.

But even if the case is not dismissed, you have protected yourself and not aided in their prosecution against you by invoking your rights. You will be glad you invoked your rights instead of waiving your rights and giving statements that police and prosecutors would use against you.

Note about traffic stops

As a practical matter, most people are contacted by police during traffic stops, if the officer asks you questions that do not pertain to the reason for the stop, you may handle that situation simply by asking,

Officer, what crime do you suspect me of committing to ask me that question?

For example, if the officer stops you for speeding; approaches your vehicle; introduces himself (Hi, I am officer so-and-so); and tells you the reason for the stop (i.e. I clocked you travelling 55mph in a 45mph zone…Can I have your license, registration and insurance?), he may ask you questions unrelated to that stop, such as,

So, where are going?

or

So, where are you coming from?

or

Who is in the vehicle with you?

or

Are you carrying a weapon?

or

Have you been drinking?

At that point, ask the officer,

Officer, what crime do you suspect me of committing to ask me that question?

If the officer informs you that he does not suspect you of any crime, invoke your right not to answer his questions because, well, the officer has no authority to ask you questions unrelated to the reason he stopped you: he is simply fishing to find information he can use against you.

If the officer informs you that he suspects you of committing a crime, then you have the right not to incriminate yourself: you may invoke your right to remain silent and for an attorney to be present for any questioning while the officer has detained you.

Fourth, never consent to a search. Note: a search includes field sobriety exercises in a DUI investigation. That’s right, you have no obligation to perform field sobriety exercises if an officer suspects you of DUI. Police are trained to make their jobs easier, which means police are trained to get you to talk and consent. Police count on the fact that most people simply talk and consent when asked by police.

Police will likely ask you, do you mind if I search you, your vehicle, home, purse, etc, or something to that effect. In that situation, you may feel you are being pressured or coerced to consent, but  you have the absolute right not to consent, and your refusal to consent cannot be used against you at trial. If police ask for your consent, simply say,

Officer, I do not consent to any searches.

It is simple: do not talk and do not consent. These are your rights. Invoke them.

Conclusion

“Reasonable” cause and suspicion are low standards. Depending on the judge, reasonable cause and suspicion may be a “license” for officers to stop whoever they want and ask whatever questions they wish. This puts many citizens in positions of having to prove their innocence to police. It puts people in a position of having to defend themselves against prosecutors who assume you are lying. It puts people in a position of having to worry about how a judge will rule on legal issues–a judge that favors the government in every scenario and who hates to rule against police and prosecutors.

The fourth and fifth amendments to our federal constitution were ratified by the States because of human nature. Human nature can be dangerous when people in government have the power to destroy other peoples’ lives. The number of biases, prejudices and misconceptions police, prosecutors and judges have against criminal defendants are numerable. Do not put yourself in a position of aiding them. Protect yourself with the knowledge of your rights: you can only benefit from that.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.