What are your rights when it comes to DWI and related offenses?
Getting pulled over is never a comfortable experience and for many people they are often left wondering too late as to what their rights were in regards to their interactions with the po- lice officer that pulled them over.
It is crucial to be aware of your rights, such as whether or not to comply with certain requests by law enforcement. If you do not know your rights, you may end up putting yourself in a worse legal situation, especially in a situation where you might have been accused of driving under the influence or driving distracted.
One of the most important things to understand is that the police will not pull you over randomly for a field sobriety test. As with all traffic stops, you have to commit a traffic infraction for the police to pull you over. Simple things like speeding or swerving in and out of lanes gives law enforcement the go ahead to pull you over and potentially catch you driving under the influence. Another cause for law enforcement to pull you over would be if they think you are driving distracted.
When being pulled over for distracted driving, there are two main charges: driving while using a mobile telephone and operating a motor vehicle while using a portable electronic device. These two charges encompass any sort of electronic device that could distract your focus from the road, even if you are talking with the phone on your lap or punching something into a portable GPS.
The best strategy I propose to prevent being pulled over is to invest in a holster for your device and always use Bluetooth if you’re going to talk on the phone while driving. If your device is secured to the car, you won’t be pulled over for using a mobile telephone or operating a portable electronic device.
Along with needing a reason to pull you over, the law enforcement officer will need probable cause to conduct a field sobriety test. Things such as the smell or presence of alcohol or other drug paraphernalia would usually lead to them conducting one of these tests. If they are still convinced that you are under the influence after the tests, they may administer a preliminary breath test (PBT).
While this isn’t the breathalyzer test they will use against you in court, this test, along with others, is the officer’s way of trying to establish a probable cause to make a DWI arrest.
You are not required at any point to participate in these tests. You are also not required to speak with a law enforcement officer at any point without your attorney present. While you are not required to participate in these tests, however, being compliant with the officer will help you more often in the court of law.
If you have not done anything wrong and you comply with the officer’s instructions, the burden ultimately rests with the prosecution in court to prove that you were in fact driving under the influence.
It is not recommended, however, that you refuse to take a chemical test since it will lead to an adverse inference being made against you in court. You can still be charged with Driving While Intoxicated without a certified chemical test showing your blood alcohol content (BAC). This is normally referred to as “common law” DWI, a violation of Vehicle and Traffic Law Section 1192-3.
Along with not being legally required to take certain field sobriety tests, the police are also not allowed to search your car without a search warrant. This, however, can be circumvented if items such as drugs or firearms are in plain view or if the officer claims he or she detects an odor of alcohol or an illicit substance.
If there are items such as these laying in view of the law enforcement officer, they can search through your car, potentially finding other illegal items.
It is paramount that you know your rights and protect yourself in a situation in which you find yourself facing a DWI, DWAI, or traffic stops in general. You are under no obligation to talk to law enforcement without an attorney present. The moment you talk in a situation in which you are in police custody is the moment you start telling on yourself.
With the consequences of a DWI ranging from license suspension to a misdemeanor (or felony for repeat offenses), knowing your rights and having counsel that understands the intricacies of criminal and traffic laws is essential.
Derrick Hogan, Esq. is a partner with Tully Rinckey PLLC. He primarily focuses his practice on criminal defense and heads the Firm’s Criminal Practice in the Saratoga Springs and Albany Offices. He has represented clients facing all types of criminal charges at both the State and Federal level. He can be reached at (518) 2180493 or info@tullylegal.com.