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Exercising Your Rights Can Prevent a DUI Conviction

There are a couple of reasons most lawyers state that interested them in pursuing a career in the law: one, they like to argue; and two, they want to help people. With due respect to their choice, I am omitting those who are in the profession to make a lot of money, though they do provide the grist for a good many of the lawyer jokes going around. 

Me, I fall into both categories. But of the two, I favor the second, especially when it comes to criminal cases. What most people, and certainly, government prosecutors and federal and state legislators, believe, is that "setting an example" by getting convictions is necessary to stop crime, and bending the constitution is okay. I disagree with that with all my being!

In over 30 years as an FBI agent and lawyer, I have seen innocent people literally railroaded by the criminal justice system because they did not know what their rights were when confronted by the police. As a consequence, far too many have found themselves in a position where their trust in the system (the belief that if I'm innocent, nothing will happen to me) backfired!

This can take many forms: talking to the police without asking the right questions being perhaps the foremost transgression.

The Fifth Amendment to the constitution attaches to every peron in the United States when he or she is confronted by the police. It protects the individual from being compelled to give evidence against himself. And it does not mean just at trial, but at anytime he is the target of a police investigation. While the protection applies across the board, many don't understand it or reach out for its protection --- I call these folks, "blabbers." Like a 10-year old confronted by a parent, they tell the police everything, and do everything the police officer asks them to do. Even when they don't have to! Even when its in their best intersts NOT TO!

In the past week, two friends (not clients) contacted me. Each had been stopped by a police officer on suspiciion of DUI. Each recalled what I have preached to all my clients in newsletters and on the Internet: Decline, "on advice of counsel," to answer any question about whether you have had anything to drink, and decline, "on advice of counsel," to perform field sobriety tests. Both followed my advice.

One reported that after making the statements suggested, the state police officer laughed, and said something to the effect that,"If you can remember all that, I guess you are okay to drive."  He was not charged.

The second was charged, but because the officer had no admission of prior drinking, and no field sobriety tests (which are, by the way, almost completely unreliable indicators of impairment), had his Florida DUI charge reduced to improper driving. He spent a night in jail, but avoided what may have been  for him, a job-losing conviction for DUI.