Friends, on my way home from Target yesterday (July 4th), I saw a young man stopped by TWO state patrol officers on the exit ramp of 394 and Xenia. The guy was wearing a white Twins Jersey and doing “Field Sobriety Tests”. I watched as long as I could. I then thought I’d give you the legal insight on what to do in a DWI/DUI situation.
Here are the do’s and don’ts.
1. Always be very polite to the cop. But, say as little as possible so the cop can’t say you were “slurring your words”. If you are asked if you had been drinking, be very polite and say “officer with all due respect, I am glad to answer all of your questions but only if my attorney can be present”. While we are taught to be honest and trust cops, saying you had been drinking (even a beer or two) is gong to likely lead to some automatic charge. You don’t want to say “I refuse to answer”. That sounds too incriminating if told to a jury. But, saying, I’ll answer but let’s get my attorney here first, sound REASONABLE. Don’t worry, the cops will never call your bluff and get an attorney to come down. You really don’t have a right to an attorney when you are stopped – but jurors don’t know this.
Note, you do have to show driver’s license and insurance. You must comply if the cop asks you to step out of the car. Know that the cop is going to be watching your balance so be careful how you exit the car. Try not to look like you are holding on the car for balance. Also know, most DUI stops are recorded on “dash-cams” so act polite and very respectful at all times. Call the cop “sir or madam”.
2. Do NOT agree to perform field sobriety testing. These are “say the alphabet backwards from the letter J, or do the heal-to-toe walk, follow my pen with your eyes” , etc. The law does NOT require you to take these road-side tests. No one can pass these tests 100% (even sober) when you are nervous and you have cops in your face. Best to tell the cop “I am happy to take your tests but only if my attorney can come and be here”. The cop will never grant you this request, but hold firm. If you take the tesst, you are likely going to fail and end up being arrested. If your case goes to court, instead of having the cop testify “this guy refused the tests” or “failed the tests”, it is much better for the court and jury to hear “this guy wanted his attorney present for the test” and we couldn’t do that so the tests were not done.
3. You need to call an attorney if you are arrested and when you are given an opportunity to call. It is a crime in Minnesota to NOT take the official breath test, or submit to a blood or urine test AFTER you are arrested. This is different from the road-side little breath machine. Since refusing to take the official real test AFTER you are arrested and at the cop shop IS a crime, you do need to call an attorney to learn of your options. You will also lose your license for a year…yes 1 year, if you intentionally refuse the real test at the cop shop. Although, Minnesota has a new law which will allow you to drive IF you follow the procedures and install an “ignition lock” system on your car, preventing it to start if there is any alcohol in your system. All police stations have directories of DWI attorneys to call in the middle of the night. *Thus, before you talk at the cop shop or take the tests once you are arrested, CALL an attorney for advice. This is key.
4. Know there are two (2) DUI/DWI laws. One is driving while impaired. This has little to do with the legal limit .08 law. If you are under .08 but buzzed and affected, and don’t have a clear head, you can still be convicted. The second law is the .08 law. Even if you are “stone cold sober”, if your blood alcohol is .08 or more, you can be convicted. You also can not drive while under the influence of prescription drugs or cough medicine. (Urban legend betting DUI saying you are high from Codeine medicine.
5. There is new law on constitutional rights for DUI victims. Thus, this is another great reason to contact an attorney. Your case may fall into this new law protection and could lead to getting your case dismissed.
6. Finally, in Minnesota, it is illegal to be “in physical control” of a car while .08 or impaired. This means you can be convicted of DUI if you are drunk and in or on your car, even if you are parked. You can not sleep it off in your car. The law prevents people from “being in a position” to move the car when there are not 100% sober.
7. If you contact an attorney, he will likely also tell you to request an additional test (your own test). This could be helpful down the line in court. Lots of “tricks of the trade”.
For more information, call Richard W. Hechter & Associates. Rich Hechter has been defending DUI/DWI cases since 1988 with great success. Visit www.richhechter.com
Rich is board certified as a civil trial specialist by the Minnesota State Bar Association and is a Fellow with the Academy of Certified Trial Lawyers of Minnesota. 952-920-0840