It's 2:00 am. Do You Know What Your Rights Are?

The rights we have in America are there to protect the innocent. None of us likes to hear about some criminal getting off on a technicality. The purpose of this article is not to help guilty people get away with anything. It is to make American citizens aware of their rights under the laws of our great democracy.
"BLIND MULES": Several hundred Texans with no prior record are sitting in Federal Prisons for smuggling drugs from Mexico. These people were caught with marijuana attached to the chassis of their car. Drug gangs operating on both sides of the border place and remove contraband without the driver's knowledge. Most of the drugs get through - this was especially true before the 9-11 attacks. This activity is still going on. People get stopped with drugs under the car. They swear they knew nothing about it. "Yeah, sure" the agents will say. The accused is charged under Federal drug smuggling statutes that carry minimum mandatory sentences starting at 5 years for first-time offenders. It's a slam dunk case for the prosecutors. Happens every day. That's why innocent people above all need to know how to act and what to do in the presence of police.
TRAFFIC STOP: Imagine that you are driving down the highway one evening after having a couple of beers with friends. You are relatively sure that you are not intoxicated. You had dinner earlier and you had your two beers over a couple of hours. You felt secure that you were okay to drive. As you pass an intersection a police cruiser pulls behind you and follows you for a couple of miles. Suddenly the strobe lights on the cruiser turn on flashing their lights in every direction. The cruiser's headlights are alternately blinking and flashing. They are pulling you over.
PRELIMINARIES: You pull over to the shoulder and stop your vehicle. You turn the engine off and roll down the window. When the officer approaches your car, he shines his flashlight in your face. You think it's rude - but that's not the point. He is trained to do this to temporarily blind you while he quickly glances around for any sign of a weapon or contraband. He may ask "do you know why I pulled you over?". This is not an attempt at making conversation. He is hoping you will incriminate yourself by saying "yeah, I was speeding".  After you give him your license, he will ask "Do you still live at (reads address from license)?" If you answer "no", he will want to know how long since you moved. If you say, "a couple of months", you're screwed. In Texas, you have 30 days to notify the DPS or your license is automatically suspended. Now, you're driving with a suspended license. He can now take you to jail, and probably will. If you say you moved "a few days ago" the officer can take your license, punch a hole in it with a hole punch, and log your new address. To avoid this, update the address on your license whenever you move.
If the officer asks to look around your car, you can tell him: "No". He can't search your car without probable cause, a warrant, or your permission. Over 90% of searches where contraband is found are made with permission. In order to have probable cause the cop has to be convinced that you are hiding something illegal or there is a crime afoot. REMEMBER: Anything in the open that he sees may give rise to probable cause.  If you make it through this little charade, he asks the inevitable question: "Have you had anything to drink tonight?" You are nervous. You do not want to lie to a cop. But you know you must smell like beer and cigarettes. After all, you just came out of a bar. You admit to the officer that you had two beers. He then asks you to step out of the car. Sometimes people think they can "talk their way out of it". Police are hired to make cases. Any truths you tell can be used as evidence against you. Any lies you tell can get you charged with obstruction of justice. So no matter what you say to the police officer, it's a one way street. That's why most defense attorneys advise silence from the start.
"Z-Y-X-W-V…": He next wants you to do a few field sobriety tests. First he pulls out a pencil and puts it in front of your face. He moves the pencil from left to right and then from right to left several times. Then he asks you to stand on one leg and count to thirty. He asks you to walk an imaginary line, take nine steps, pivot, walk nine steps backwards and pivot again. You perform the tests.
Roadside tests are voluntary. This means the police cannot force a driver to perform roadside tests. The problem with roadside tests is that they are tests that are designed for failure. Further, it is the police arresting you who decide if you've passed. There is no real grading system. Try standing, sober, on the side of the highway with cars zooming by and walk a simulated line, that isn't really there, in bad light (most DWI arrests occur at night) and usually on an uneven surface) and see how well you do! Road side tests have always been suspect because of a lack of objective criteria as to whether or not the subject "passed" or flunked the test. The real purpose of such tests are not to determine whether you will be arrested or released at the scene, but rather to mount additional evidence against the person being accused. You have the right to refuse the roadside tests! You are not required to perform field sobriety tasks. If you believe that you may be intoxicated, a polite refusal to perform these tasks will benefit you greatly in the inevitable proceedings which will follow. Politely refuse and look down or away when the officer attempts to perform the "pen test" on your eyes. Remember: if it is after dark and you have the odor of an alcoholic beverage on your breath, the officer is going to arrest you whether or not you think you have passed the tests. But let's say you decide to cooperate, and do the tests anyway. You feel like if you do pretty good, maybe he'll let you off. After you complete your tests he announces that you are now under arrest and puts handcuffs on you. He puts you in the back of the cruiser and calls a tow truck for your vehicle. You are taken to the station where you are booked.
"BLOW THIS…": You are asked to give a breath sample at this time. What should you do? This scenario is played out every day in Texas. Breath tests are requested in many Driving While Intoxicated cases in Texas. Texas law holds that you have given the State implied consent to test you in this manner when you applied for your drivers license. Refusal to be tested may result in an automatic license suspension. Failing a breath test will also result in a license suspension.
Under the current law (which may change in the near future), if you have no prior DWI convictions and you refuse to take the breath test you will lose your license for 90 days. If you take the test and fail you will lose the license for 60 days. Under the current law there is little incentive to cooperate and a considerable incentive not to cooperate. Taking the test and failing may doom you to conviction for the DWI charge. Even if you pass the test, you will not be released. You have already been arrested, it's too late. You'll have to deal with the Judge and the D.A. now. The purpose of the test is to gather additional evidence against you.
In Texas most patrol units have a videotape recorder in the car which points forward. This means that it is likely that the officer will have video footage of your vehicle being pulled over and of you being given the field sobriety tests. They may also have an audio tape of you speaking to the cop and making any admissions.
In addition to a breath test request you may also be compelled to take a blood test. This you may not legally refuse and one will be taken against your will if you do refuse. Fortunately, most police stations do not keep medical people on staff to do these tests so you will probably not get one unless you were arrested after a car accident and were taken to a hospital.
HONESTY: Should you have admitted having two beers in the first place? Who knows. If you had denied it and were arrested anyway it might have become obvious from a blood test or a breath test that you were lying. This would not have been good for you if you tried your case later. In many instances it is better to admit having a couple of drinks. Make sure you stick to your number though. Many people say a couple and before questioning is ended they are up to a six pack. If your goal is to go home without arrest you better stick to your guns. Be specific. There is a perceived difference between two beers and "a coupla beers".  I even name the brand.
LEGAL ISSUES: In Texas intoxication can be established in two ways:
1. You registered .08 blood alcohol or higher on a breath or blood test; OR
2. Your mental or physical faculties were impaired by alcohol consumption
If you refused the breath test then there is no way that the state can prove item #1. They will try to prove item #2 with the cop's testimony as well as the videotapes, if any, which the cop made at the scene of the arrest and at booking. They will have to convince a jury by showing that you failed the field sobriety tests. This is subjective and if there are videos this can work very much in your favor. A good video can convince a jury that you were not impaired. A bad video can sink your case.
YOUR HOME: So far, we've just talked about a traffic stop. But what about when the police come to your home? What should you do?
First, you do not have to answer the door. You can tell them to go away, or simply ignore them. They cannot enter your home without a warrant. For some reason, most people feel that they MUST answer. Reality is, you can order them off your property if they do not have a warrant.
Answering the door can be a bad thing - for example once you open the door, the officer may say he smelled marijuana, thus giving him probable cause for an instant search. If you must talk to them, you may come outside and close your door.
Again, maybe you should not be talking anyway. Anything you say is evidence against you. Police have started using a procedure called "knock and talk" or "knock and announce". The officers come to your house without a warrant and tell you they have received an anonymous tip that you are doing something illegal (drugs, child abuse, etc). Often it is something they KNOW you aren't doing. "Child abuse? But officer, I don't even have any kids!" They then ask to "take a quick look around". As soon as you let them in, they start searching, and find your ex-girlfriend's bong, or that pint of moonshine gramps got you for Christmas nine years ago. You're busted. When you permit a search, everything in the house, including your computer, can be taken apart, and all evidence is admissible. On the other hand, a search warrant must specifically name exactly what the police are looking for, and why they believe they will find it. I would never allow a warrantless search, because it reminds me of Hitler.
IN ANY CASE, if you do find yourself in jail, most attorneys say do not answer questions, appear in a lineup, or make any other incriminating moves. Don't be stubborn or argumentative about exercising your rights. Be humble and polite. Ask for a phone call. Contact an attorney and a bail bondsman immediately.  Keep your mouth shut until you can consult an attorney.  One last thing: you have a right to a jury trial, and if you plead innocent, you should probably ask for one. Prosecutors and judges work together on a daily basis. A jury made up of regular citizens is more likely to see things from your point of view. Do not let a prosecutor "bully" you out of it. A jury will understand that you are not a lawyer. They will try to be impartial. The jury system is what keeps justice alive in America.
In closing, let me emphatically say that none of the police behavior described here is illegal. It is all common practice.   The police have to be crafty, as they must deal with the "bad guys" out there. However, innocent people who may be suspected of crimes should be aware of their rights.  GATOR