Wednesday, December 28, 2011

New Years Eve: Read This Before You Party!

My learned father Tom Simms once told me that you shouldn’t be out on the roads after 2:00am, because “There’s nobody out there except for cops and drunks.  And you don’t want to run into either of them.”*  This little golden nugget of truth shines no brighter on any other occasion than it does on New Years Eve (hereinafter, “NYE”).

For those of you who ignore the admonition of modern day prophet Tom Simms, do so at your own peril.  The police are prevalent on NYE, and the biggest party night of the year is notorious for road blocks (also called “DUI check points” depending on where you read about them).  Generally, today’s conversation will be about how to handle yourself and what not to do during a road block.  Ancillary issues will include how lawyers fight DUI cases that involve road blocks and what to expect concerning the procedure of a DUI case.

Personally, I intend to spend NYE with some close friends and stay in, rather than brave the clubs.  See also: "Chillabrate."**  If you refuse to chillabrate this year, and you venture out in public - consider the following scenario.

Let’s say you’ve been drinking, and the party has ended.  Let’s assume you are not stumbling drunk.  You have just been drinking a few drinks.  Instead of taking a cab or city scooting the way home (for those of you lucky enough to live within “City Scoot” range), you get behind the wheel of your car.  As you drive down the road, managing to keep it between the lines, you approach what looks like it might be a wreck.  You slow down and get in line behind the vehicle in front of you, and stare down the row of red brake lights until you get to the sea of police cruisers flashing their blue emergency lights.

Pulse pounding and hands sweating, you try to remember the following pieces of advice:

1) Have your license, insurance, and registration handy.  That way, if they ask for one, all, or a combination of those things, you can immediately hand them to the officer.  If you don’t have them, you can be cited.

2) Do not speak to the officer.  Smile politely, and go to number 3.

3) Hand the officer my card, turned over to the backside.  The officer will be able to read the message that says you wish to remain silent, and that you do not waive any of your constitutional rights.  It also informs the officer that you will not take a PBT (preliminary/portable breath tester) or participate in any field sobriety tests (FSTs).

4) Do not perform field sobriety tests or blow on a PBT.  You are well within your rights to refuse to do these things, and you should refuse them.  Again, you should do this without speaking.

If you follow the above instructions, the officer will not have 1) evidence of bad driving (because you were stopped at a roadblock and not for a driving infraction), 2) any admission of drinking, 3) evidence of alcohol on your breath (because you didn’t speak), 4) failed sobriety tests, or 4) an alcohol reading on a PBT.  Typically, at least some of the aforementioned criteria are needed for a DUI arrest.

But Greg, what if I don’t have one of your cards?  Then you should say nothing.  The basic point is that you don’t want to tell the officer that you’ve been drinking (or any other incriminating statements) and you don’t want to give the officer an excuse to write, “Subject had slurred speech and the smell of alcohol on or about his/her person” on your citation.  And if you don’t speak, they can’t write those things.

As a side note, if you send me a stamped envelope, or drop by my office, I will give you some of my business cards.

Let’s change the facts a bit.  Let’s say you haven’t had a drink all night.  If you haven’t been drinking and you are sure that you don’t have any contraband in the car, feel free to just tell the police officer that you haven’t been drinking.  That being said, I have a lot of clients who would have been a lot better off if they had just remained silent.  You have the right to do that.  

If you feel bad about “hiding” information from the police, just remember – the right to remain silent is an essential part of your Constitutional Rights.  You are not a bad person for invoking your rights as an American.  I know a lot of bad people.  Invoking your rights doesn’t make you one of them.  America.  Apple Pie.  Hulk Hogan.  Wait, where was I going with this?

You do not have to divulge the whole truth to the police officer.  You can remain silent.  Cops are not your friends.  They are not trying to help you.  Do not help them build a case against you.

Let’s take a foray into the actual legal work that gets put into fighting a road block DUI.  Stick with me and try not to fall asleep.  If you have a Louisville DUI lawyer that is worth a damn, he will understand that the basic legal requirement for road blocks is that they must be constructed so as to “limit the discretion of the officers in the field.” Commonwealth v. Bothman, 941 S.W.2d 479 (Ky. App. 1996).  

To that end, a Judge would want to know if the officers who performed the road block conformed to the OM – E – 4 guidelines.  These guidelines are actually Kentucky State Police guidelines, but the vast majority of local law enforcement entities have adopted the OM – E – 4 guidelines by copying them verbatim into their own policies and procedures.  I will not bore you with posting the entire OM – E – 4 guidelines.  Just know that generally, require road blocks should be held at pre-approved locations, the start and stop time of the roadblocks should be pre-determined by a superior officer (and not an officer in the field), and there should be some sort of advanced warning that the road block exists.   There are some other requirements, but they are generally less important.  And the law doesn’t require strict compliance.  As previously mentioned, the road block must be constructed to take away discretion from officers in the field.  Still awake?  Good.

In order to attack the roadblock and put the issue in front of your judge, a good Louisville DUI lawyer would make a motion to dismiss the case, and in the alternative, to suppress any evidence gleaned as a result of a violation of your 4th Amendment Right to be free from Unreasonable Search and Seizure. 

There.  I'm done.  That wasn't so bad, was it?  At the end of the day, I hope this conversation has shed a little light on the concept of road blocks and how to handle yourself during one.  Or at least provided you with an opportunity to slack off at work while reading something that was "educational" and thereby rationalizing your time spent as NOT actually "slacking."  If you have any other questions about DUIs or road blocks, please feel free to call me.

Not all Louisville DUI lawyers are the same.  If you have been charged with DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, get a Louisville DUI lawyer who knows the law and has experience.  Don’t settle for a lawyer who doesn’t try cases in front of a jury.  Your case is too serious for a lawyer who isn’t a Louisville DUI trial lawyer.  Call 502.473.6464 and speak to DUI lawyer Greg Simms at 
Murphy & Powell, PLC today.  The initial consultation is free of charge.

Individual Attention.  Extraordinary Results.

*Not to be confused with my father’s second most famous quote, “Mow the damn grass.”


Questions answered in this blog post:  What do I do at a police roadblock; what am I supposed to say at a road block; how to interact with police officers when you have been drinking; how to prevent getting arrested at a roadblock; how do lawyers fight DUI cases; where can I find a good Louisville DUI lawyer; do I have to perform field sobriety tests; do you have to blow on a breathalyzer; how to find a good Elizabethtown DUI lawyer; should I refuse a breathalyzer in Kentucky;  is there a legal obligation to take a PBT in Kentucky; how to find a good Lexington DUI lawyer?

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