The consequences for being found guilty of drunk driving are severe and Newport DUI Attorney Kevin Hagan says that while it is vital that law enforcement protect the residents they serve and enforce the law, it is equally important that residents understand their rights when they are pulled over.
“I’m not beating the drum that police shouldn’t be doing their job,” Hagan said. “If people know their rights, it helps law enforcement do a better job.”
“The bottom line is very simple; people shouldn’t drink and drive.”
But police have a job to do, and a criminal defense lawyer has a job and obligation to uphold the Constitution, he said.
What should you do if police pull you over?
Hagan said overall, an officer is looking for evidence that you are intoxicated. Therefore, anything you say or even how you say it (slurred words, confusion) could be used as evidence. Although you must provide identifying information and documentation, you are under no obligation to say anything else, he said.
His recommendation? Ask to speak to a lawyer and don’t answer any questions.
But, it won’t be comfortable, warns Hagan.
“It’s rude not to speak to the police officer. The police officer wants information. There is no way to do this diplomatically.”
Consider the scenario when an officer asks if you have been drinking. If you answer yes, it is damaging evidence. If you answer no, and it is later proved wrong, you have lied.
Hagan said it’s generally better to invoke the fifth, because it is difficult for the court to hold that against you.
Do I have to take the field sobriety tests?
No. Hagan said he is surprised with how many people do not realize you have the right to refuse the field sobriety tests. He said in most cases, that is the best option.
“In my experience, even people who are sober can fail it,” he said. “It’s a no-win situation. Why would you submit to a test that you are likely to fail?”
Unlike refusal to take the chemical test, there is no criminal or civil penalty for refusing to take the field sobriety tests.
Should I take the chemical test (breathalyzer)?
“The general consensus from a criminal defense lawyer is that more often than not, refuse the chemical test,” Hagan said. “Refusing makes the criminal case more difficult to prove within a reasonable doubt.”
First offense refusal of a chemical test is a civil offense; it is not criminal. However, unlike refusal to take the field sobriety tests, it is not without consequences. A license can be revoked for six months and the driver may incur a $950 fine, plus several other fees, although nothing is determined until brought before a judge.
“Sometimes if you admit to the criminal, they will drop the civil. Or vice versa,” Hagan said.
There is a myth that if the key is out of the ignition, you can’t get a DUI. Untrue. In Rhode Island, operation of a vehicle can be inferred, which means you can still get a DUI even if you are out of the car. Police can feel if the hood of the car is warm or use witness testimony that you were driving.
There is a rumor that sucking a penny will alter the breathalyzer results. False, says Hagan.
There are many factors that determine a person’s BAC, so even if you followed the one drink per hour rule, you could be found over the legal limit on a chemical test.
– If you were not provided the opportunity for an independent chemical test.
– If you were not read your rights.
– If you were not provided the opportunity to make a confidential phone call.
– If you took the field sobriety tests, it could be argued they were not standardized or you do not fit the standard profile (medical conditions, weight, etc).
Should I hire a lawyer?
A lawyer can help negotiate a possible dismissal, get the charge amended to a lower offense or exercise a right to a trial. Lawyers are also typically more effective at cross-examining witness.
“A lawyer is better suited for a DUI case because of the technical nature of the case,” he said.