What if I get pulled over? (the arrest)

 I will begin this post as I will begin many others; please don't drink and drive.  It's stupid and REALLY expensive if you get caught, not to mention you might kill someone.  DON'T DRINK AND DRIVE.  That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.

Well, you've made it through the stop and the initial conversation and the field sobriety testing but somewhere, you messed up. You are now in handcuffs and on the way to the police station where you will be booked and asked to submit to a chemical test.  Here are some thoughts about what to do next.

1. Stay calm but shut your mouth. 
    Once the handcuffs are on, everything you say just goes in the file toward your eventual conviction. This is not to say that you should be rude, but there is no need or point to trying to talk your way out of anything at this point. Police hate paperwork, and the only thing that would cause more paperwork than taking you to the station and booking you is taking you back to your car and letting you go.  It isn't going to happen.  Secondly, anything you say now, you'll have to remember later and be perfectly consistent with from now until the end of this whole ordeal. Even if you are telling the truth the whole time, you have to remember all these different things and the slightest deviation paints you as a liar in front of a judge. 

2. Ask for an attorney. 
    In the state of Missouri, as soon as the implied consent reminder is read to you, (a paper that the police are required to read informing you that you don't really have any rights) ask to call your attorney.  Your attorney might not be there, your attorney might not have any good advice, or you might not even have an attorney. (If you're reading this blog in the area of Southwest Missouri and haven't put our phone number in your cell phone or wallet, do so now)  None of that matters.  Just ask to call an attorney.  Failure to let you speak to an attorney is one of those important rights that the government likes to label as a "technicality" that can get your charges dismissed.  Note here, the officer is not required to remind you of this right, and likely won't let you know that you have the ability.  You must ask for it. 

3. Should you blow?
    At this point, the officer will have you sit in a room for 15 minutes in handcuffs (your nose will itch like crazy, just try not to think about it) for you to blow into an evidentiary breath test.  By law, they must wait 15 minutes while you do not put anything or regurgitate anything in your mouth (to do so makes the test invalid) I can't tell you if you should take the test or not, but I can tell you the consequences of both.  If you blow and you are above a .08 BAC according to the machine, you are probably going to be convicted of a DUI/DWI.  While a good attorney may be able to find some reason why your charges should be dismissed, with a positive breath test, the fewer arguments an attorney can make. Furthermore, you will likely lose your license for a while, although in Missouri you can get a hardship license or limited driving privileges to keep you as a productive member of society. If you refuse to blow, your license is gone for a year (a lot harder to get back) and you can still be convicted of a DUI/DWI.  However, if you already have two or three DWI's, there is a good reason not to blow.  Also, if there was a car wreck or someone was injured, you might consider not blowing here as well, as breath test results could be admitted in your civil case and cost you millions or even to a manslaughter case. Again, it all depends on your situation. 

4.  Remember you are on TV  
    In the holding cell, in the dui machine room, everywhere at the police station, you are being videotaped.  Anything you do can and probably will be shown to the judge or jury at your trial.  Crying, wobbling, even acting happy can all be used against you.  Best advice is to always remember you are on camera, and you should sit still with good posture like the upstanding citizen you are until you are allowed to leave. 

What if I get pulled over? (Field sobriety testing)

 I will begin this post as I will begin many others; please don't drink and drive.  It's stupid and REALLY expensive if you get caught, not to mention you might kill someone.  DON'T DRINK AND DRIVE.  That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.

Well, you've made it through the stop and the initial conversation, but somewhere, you messed up. The police officer is now asking you to step out of the car to do field sobriety tests.  Here is what to expect and what the real tests are.

1. The first test is not something listed, it is how you get out of the car.  Remember that checklist we talked about? Stumbling to get out of the car/using the car for balance is one of those things.  Put both feet down, and step calmly and confidently out of your car without using the car to keep your balance. 

2.  There are several things you should do before beginning the field sobriety testing.  First, take an in depth look at your surroundings.  Is the road even?  Is it covered in gravel?  What's the weather like?  Are you cold, hot, or is it raining?  Is the road you are on seeing a lot of traffic?  All of these things can help your attorney mount a case against the accuracy of the field sobriety testing.  Secondly, before the tests, you should inform the officer of anything that might impact your ability to take the tests.  Do you have a speech impediment?  A limp or disability?  Eye problems?  A fever? Are you too cold outside your car? All of these things can significantly impact your ability to take the standardized field sobriety tests and while the cop probably doesn't care, you need to put this information out there so your attorney has something to question the officer about and provide an explanation as to why you couldn't walk a straight line.

3.  No one passes these tests, but do not ever say "I probably couldn't pass these tests if I were sober!" or anything like that.  See previous posts about shutting your mouth.  The four tests you will be asked to endure are the horizontal gaze nystagmus test (HGN), the walk and turn, the one leg stand, and finally, the portable breath test, or PBT.  These tests are designed so you will fail them.  I will post at length about the scientific problems with these tests in the future, but here is a brief synopsis of what to expect and what is actuall being tested.

4.  The horizontal gaze nystagmus (HGN) test.
    Although this test has a difficult name, it has an even more difficult application.  According to the National Highway Traffic Safety Administration (NHTSA), the agency that came up with these tests and whose book is the training manual for all officers using this test, the HGN test measures the "involuntary jerking of the eyes occuring as the eyes gaze toward the side."  This is measured by the officer making you follow a fixed point (often a penlight) with your eyes without moving your head.  The thought is, if your eyes twitch while tracking the object, you must be drunk. Here, the officer is looking for three clues: the lack of smooth pursuit, distinct and sustained nystagmus at maximum deviation, and the onset of nystagmus prior to 45 degrees.  This test's accuracy is dubious in nature, as it is very difficult for even a well-trained officer to accurately know when the object you are tracking is at 45 degrees.  It is so unreliable, that courts throughout the United States (and even the legislature in Missouri) have made the HGN test inadmissible to show impairment, only to show probable cause.  The main thing to keep in mind here is smooth pursuit. 
    Also, try to note if there are any passing cars while you are performing this test.  Nystagmus falls under three different categories, neural (what your brain is telling your eyes to do), vestibular (what the rest of your body, like the inner ear, is telling your eyes to do), and patholigical disorder nystagmus (what a disorder, like a brain tumor, is telling your eyes to do.  Police are looking for neural nystagmus, which may be caused by alcohol consumption, but can also be caused by "the eyes fixat(ing) on an object that suddenly moves out of sight," like passing cars. This type of nystagmus is referred to as optokinetic nystagmus and is indecipherable from alcohol induced nystagmus when cars are passing behind the stimulus (penlight).

5.  The walk-and-turn test.
    You may think this is just a test to walk a straight line, and that is certainly the appearence of the test the officer will offer you, but they are in fact testing much more than that.  The test begins by the officer instructing you to put your left foot on a line, to put your right foor on the line agead of the left foot with heel of the right foot against the toe of your left foot, place your arms at your sides, and maintain this position until I have completed the instructions.  He will also demonstrate all of the things he just showed you.  Little do you know, the test has already started!  There are several things the officer is looking for during the "instructions" part of the test.  If you interrupt the officer, even to ask a question about the instructions, you just showed a clue of intoxication.  If your feet come apart or you raise your hands above a few inches from your waist during this portion, you just showed another clue of intoxication.  If you sway while waiting for the instruction to start, you just showed a clue.  Finally, if you begin the test before explicitly being told to begin the test, you just showed a clue.  The NHTSA says that if you show two or more "clues" of intoxication during this test, you have failed the test, so you can fail before you are asked to even walk! Remember this and act accordingly.
    After the "instructions" phase, the officer will demonstrate and tell you to walk nine steps, turn BY KEEPING YOUR FRONT FOOT ON THE LINE AND TAKING A SERIES OF SMALL STEPS WITH THE OTHER FOOT, and take nine steps back, counting each step aloud and not stopping until the test is completed.  That portion is put in caps for a reason, as no sane person turns around like that.  If you do a simple about-face at the end of the line, you just showed another clue. Instead, you must keep your toe on the line, then walk, like a lunatic, in a small circle taking several steps with only one foot until you have turned 180 degrees while keeping one toe in place the whole time.  If you turned like a normal person, you just showed a clue.  If your arms leave your sides, you just showed a clue, if you stop, even to ask a question, you just showed a clue.  If your feet don't touch heel to toe, you just showed a clue.  If you step off the line, you just showed a clue.  Hardly anyone passes this test, primarily because of the hidden tests within it, but now that you are armed with the information of what is actually being tested, hopefully you can do well enough to stay out of jail.

6. The one leg stand.  
    The officer will now tell you to stand with your feet together and your arms down at your sides, and to not perform the test until you are told to.  He will then tell you to raise one leg off the ground approximately six inches but parallel to the ground, both legs straight, arms at your side the whole time, look at your foot, and count out loud in the following manner "one thousand one, one thousand two, one thousand three UNTIL TOLD TO STOP."  Notice caps again there?  That's because this is where even the most straight laced teetotaler would fail the test.  Most people count one thousand one, one thousand two, and so on until they get to around 12, figure that is sufficient, and drop their foot.  That person just showed two clues of intoxication and is on their way to jail.  What the officer does not include in the instructions is that you have to count to THIRTY!  Not only is it very difficult to remain in that position for thirty seconds, you are never told to do so.  Instead, you are just told to count out loud until being told to stop, which most people ignore, and then both put their foot down and stop counting (both of which are clues) after a reasonable amount of time has passed.  As noted previously, it is also a good idea to take note of any conditions that may affect your ability to perform the test.  The wind, the temperature, the shoes you are wearing, and even a headcold can seriously affect your ability to pass this test.  Let your attorney know of all of these conditions.

7. The portable breath test (PBT)
    If you have shown any "clues" of intoxication on the field sobriety tests, (which you have, no matter how well you think you have performed), then the officer will then ask you to take a portable breath test.  Depending on the manufacturer, these do not detect your actual blood alcohol content, merely the presence of alcohol. They are also notoriously unreliable, and in Missouri, (like the HGN) are inadmissible except to prove probable cause.  You will also likely be told at this point that refusal to blow is a crime that you will be prosecuted for.  Do not confuse this with a refusal to blow into the evidentiary device back at the station.  Refusal to blow into a big breath machine like a Datamaster or Intoxilyzer is an automatic licence revocation (which can be fought, call an attorney if you have refused to blow within 15 days to get your licence back) but refusal to blow into a PBT is a non-moving violation which is not nearly as big of a deal.  I cannot advise you whether you should blow or not, but I can say that if you are likely headed to jail anyway, there is no reason to continue to build a case against yourself if the only cost is a non-moving violation.

    Assuming you have completed all these steps flawlessly, then hopefully you are well on your way, but you're probably still going to get arrested (remember, the tests are designed to fail).  If so, read the next posting of what to do after you've been arrested. 

What if I get pulled over? (Conversation with the police)

 I will begin this post as I will begin many others; please don't drink and drive.  It's stupid and REALLY expensive if you get caught, not to mention you might kill someone.  DON'T DRINK AND DRIVE.  That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.
Once the police officer is at your window, he will likely have some questions for you.  Here is the best way to proceed through this conversation without going to jail.

1.  Don't be rude.  Chances are, the officer is not having a good night; they rarely are.  While you may think that acting indignant at even the thought of being pulled over can only prove your innocence, there is no "suspect was indignant" checkbox for the officer to fill out.  Instead, the rudeness you show the officer will likely come back to you several fold.  What might have just been a speeding ticket has now turned into a full investigation of where you've been, who you've been with, where you're going, if you are doing (or transporting) anything illegal. 

2. Don't be too nice either.  As mentioned here, you don't want to be too nice.  Giving the officer permission to search your car is not a sign of your innocence and will not be used that way.  Instead, it is used as just that, permission to search your car.  Offering to blow into a portable breath testing (PBT) device is not an attempt to show your innocence and good will, it is just the collection of evidence.

3.  Don't answer the question "Have you had anything to drink tonight" unless the answer is "No."  Once again, back to the DUI checklist, there is a little box that says "Suspect admits to drinking alcohol".  By answering anything other than "no" you are giving the officer more probable cause to continue the investigation, and less room for your attorney to maneuver. The most common answer to this question is "I've had one or two beers".  WRONG! Note, this is not what gets logged, its just a check next to the box that says "suspect admits to drinking alcohol". 

4. Don't smoke once you get pulled over.  No one likes getting smoke blown in their face, and you really want this officer to like you. Furthermore, courts have held that people use cigarettes to mask the smells of alcohol or narcotics, so by lighting up, you just gave the officer one more box to check in the probable cause column.  The other thing to think about here, and in all stages of the investigation, is that you are probably on camera.  Dashboard cameras have become the norm in jurisdictions around the country and can help you as well as hurt you.  The anti-smoker bias is at an all-time high right now, and do you really want the jury who will see that video of you smoking to have one more reason to not like or trust you? In some jurors minds, being guilty of one thing means you are guilty of all things.  Don't make that one thing being guilty of being a smoker.

5. Don't say more than you need to.  Does "anything you say can and will be used against you in a court of law" sound familiar?  It's not just something said on tv, this is part of you Miranda warning.  The thing is, anything you say prior to hearing these warnings can and will be used against you as well.  Trying to explain why your speech is slurred only leads to more audio of your slurred speech on the video that the jury will see.  Many people try to talk their way out of trouble, but in reality are just digging the hole deeper for themselves. 

What do I do if I get pulled over? (The Initial Stop)

I will begin this post as I will begin many others; please don't drink and drive. It's stupid and REALLY expensive if you get caught, not to mention you might kill someone. DON'T DRINK AND DRIVE. That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking. If you have been stopped, do the following to reduce your chances of a bad encounter with the police.

1. Roll down your windows as soon as you see the flashing lights. This will do two important things. First, it makes the encounter with the police shorter, as he doesn't have to wait for you to roll down your window. Secondly, and more importantly, it prevents a blast of odors you may not want the police to smell from hitting the cop in the face like taking the lid off of a pot of chili.

2. Calm down. Acting nervous is another one of those checklist items. Acting nervous can make the police anxious to why you are acting that way, and could result in a pulled gun instead of a breath test, so just act normally.

3. Along those same lines, keep your hands on the wheel. Seeing a suspect dig around in their car or pockets when getting pulled over increases police anxiety as well. If you have to reach something, like your driver's license, explain to the police officer first. Something like "I am going to reach into the glove compartment to get my paperwork" will suffice.

4. Be nice. Police have a terrible job. During the course of their day, probably 95% of the people they interact with do not want to deal with the police. No one wants to see them pull up behind their car. The courtesy you display toward the police may go a long way in the officer's decision to continue the investigation or to let you off with a warning.

5. But not too nice. The 4th Amendment to the United States Constitution is a good one; one of my favorites. The Supreme Court has interpreted it to say (essentially) that the police can't look through your stuff without probable cause. That is, unless of course you give them permission. Once you say "sure officer, look through my car" everything that is in your car that can be used against you will be used against you. Contrary to popular belief, the question "Would you mind if I looked in your car/trunk" is not a test to see if you say no, therefore you must be hiding something. It is a waiver of your Constitutional rights. So be nice and courteous, just not accommodating to Constitutional violations.

6. Don't be an idiot. Yelling at the police, quickly moving around the car to stash whatever you shouldn't have, getting out of the car and walking toward the patrol car, being a smart-ass, etc. are all idiotic things to do. Don't do them.

What if I get pulled over? (Pre-driving checklist)

 I will begin this post as I will begin many others; please don't drink and drive.  It's stupid and REALLY expensive if you get caught, not to mention you might kill someone.  DON'T DRINK AND DRIVE.  That being said, here's some tips on what you can do if you get pulled over and the officer could suspect you of drinking.

So before you start the car, go through the following checklist to reduce your chances of having a bad experience with the police.

1. Check your breath.  Preferably, through a portable breath testing device like this.  While not 100% accurate and your BAC changes as the time goes on (studies estimate that total alcohol absorption takes around 90 minutes for the "average" person) it can give you some indication if you are being too risky in deciding to drive.  If you have not purchased one of these machines, then just check your breath the old fashioned way.  At trial, if a police officer says that he detected an odor of alcohol coming from you, getting out of trouble gets a lot harder.  Mints and gum can help change your breath, although they have both been described in cases as "masking agents" to hide the odor of alcohol.  Even so, it is better to give your attorney an argument about masking agents than just smelling like booze.

2. Check around to make sure no alcohol bottles or anything else that could get you in trouble is lying around the car.  Police call this "plain view" and they can then search the rest of your car with no warrant and have the probable cause necessary to make you submit to field sobriety testing.  It is a lot harder to say "I have not been drinking" when there is evidence of your drinking lying around the car.  Clean it up!

3.  Check your appearance.  When a police officer comes to your window and stares at you, he is not just making polite conversation.  He is evaluating everything about your behavior and appearance.  On the police officer's report, there are checkboxes for things like "glassy, bloodshot, or watery eyes" (this is always checked.  They may even come pre-checked by the manufacturer) "disheveled clothing", and "flushed face".  So make yourself presentable.

4. Have your license, registration, and insurance documentation in one easy to reach convenient place.  Another checkbox on the police form is "fumbled when getting license".  If they are in separate places, not only do you run a higher risk of dropping them and seeming intoxicated, you also make the entire encounter with the police longer than it has to be.  By having all the requested documents in one place, you don't fumble around and the police don't have as much time to make a case against you.

5. Don't be an idiot.  If you have been at a bar where they either stamp your hand or make you wear one of those paper wrist bands, wipe or take it off before you drive.  Don't have any drug/alcohol/anti-cop bumper stickers on your car.  Don't allow 10 people into your tiny car.  Make sure none of your passengers have drugs or outstanding warrants.  Just use common sense.

A simplified explanation of why the law says you are drunk if you have a BAC (blood alcohol concentration) of .08 or higher, and why the law is wrong..

Since 2004, every state has stated through legislation that if your blood alcohol content is over .08, than you are legally intoxicated and cannot operate a motor vehicle.  But how did they reach this magic number to say that every person is drunk when it is reached?  One would imagine that it is a series of scientific studies that were peer-reviewed, widely accepted as scientific proof.  However, one would be incorrect in making these assumptions because the science behind the .08 number does not hold up.

To better understand why the .08 number is scientifically dubious, one must first consider the basics of the physiology of alcoholconsumption.  Alcohol is a very light liquid.  As it is consumed it is diffuses quickly into parts of the body that have some type of water content; the more water in that particular part of the body, the more rapidly alcohol is absorbed into it. For instance, blood is mostly water, so alcohol dissipates very quickly into it.  Organs, (read: the brain) have much less water and therefore absorb alcohol at a much slower rate.  As the alcohol is absorbed through the lining of the stomach and small intestines, it gets in the bloodstream via the portal vein.  From here, the alcohol moves to the liver, then to the right side of the heart, and then the lungs.  From the lungs, it then moves into the left side of the heart where it is finally pumped into the general circulatory system.  Once in the general circulatory system, it can then finally move into the brain, the part of the body that actually becomes intoxicated.

One can already see where the basic problem lies.  No law enforcement agency in the country tests the fluids in the brain (nor should they!) yet that is where the intoxicating level of alcohol must be absorbed to reach any type of inebriated state.  The tests performed instead measure the level of alcohol in the blood, urine, or breath, all places where the alcohol travels in a much higher concentration before it gets to the brain.  So why then, do we continue to permit shoddy science to fill our jails?

There are several answers to this question.  First, it is hardly a popular political position to come out in any way in favor of driving while intoxicated.  Legislators appearing "soft on crime" face a tough reelection battle.  Secondly, groups  such as MADD have huge lobbying budgets which go to fund these very candidates and ballot initiatives.  But where is the science behind their claims that .08 is the magic number?

The answer comes from the 1930's, when a Sweedish scientist named Erik Matteo Prochet Widmark published a study identifying the average absorption and elimination rates of alcohol.  He found that there was an average number which can be put into mathematical calculations that can show what someone's likely overall body alcohol content is (including the brain) by measuring the amount of alcohol in the blood.  This number (the Widmark Factor R) is the ratio between the alcohol in the whole body divided by the alcohol in the blood. It must be noted here however, that this is only an average, as Widmark's own study showed a range of .46 to .86 in men, with an average number of .67.  This number was different for women because of physiological differences between the sexes.  Furthermore, the study only consisted of 20 men and 10 women, which is hardly the representative sample necessary to derive legislation supposedly based on science in all 50 states. Finally, the test was only conducted on these 30 people with empty stomachs and by consuming the alcohol all at once, which does not account for the variety of real-world differences in the consumption of alcohol.

The methodology to come up with the brain/blood/urine/breath number of .08 based on averages is obviously flawed.  But more importantly, its conclusions are pointless if applied to individuals.  Why have an average number, when individuals vary so greatly?  An individual's alcohol tolerance can vary greatly to the next persons.  Some people might have had a large meal before drinking, others on an empty stomach.  There are numerous differences between men and women as well.  .  Compared to men, women do not have as much of the enzyme in the stomach lining (gastric alcohol dehydrogenase) that breaks down alcohol which results in different BAC readings.  Even the menstrual cycle and medications that affect the menstrual cycle have an effect on alcohol absorption.

The bottom line is, when deciding whether or not to send someone to jail or take away their driver's license, the "average" is not good enough.  We should demand more scientifically rigorous methods of determining when someone is intoxicated or not.

An introduction to the Don't Plead Guilty blog.

One of the biggest problems in our criminal justice system today is defendants everywhere feeling like they have no choice but to plead guilty.  Prosecutors, the police, and even the media have abandoned the idea that one is innocent until proven guilty, yet embraced the idea that constitutional rights are somehow a negative thing, only used by the guilty.  These factors, along with the harsh penalties associated with crimes like drug possession and DUI/DWI (driving under the influence or driving while intoxicated) the criminal justice system has become a revolving door of people accepting plea "deals"; pleading guilty without asserting a single constitutionally afforded right.

The fact is, the cases against defendants are rarely as air-tight as the state would have you, the defendant, believe.  Errors, constitutional violations, or the faulty reliance in poor "scientific" devices like breath tests that occur in the police investigations are more than just legal loopholes that can get a person out of trouble, they are the rules by which the government must play.  If the government is not playing by the rules, they should not be able to carry out sentences on the defendants in question.
Yet these errors happen every day, and because of the previously mentioned reasons, citizens plead guilty without the benefit of knowing what their actual rights are, if they were violated, not to mention actually having a trial on the facts.  This blog aims to change that by arming you with information that you need to avoid being pushed through the assembly line criminal justice industry.  We will discuss primarily drugs and driving while intoxicated or driving under the influence and the law as it applies in Missouri.  Hopefully you never need to know this information, but if you do, it is my aim to arm you the information necessary to avoid a guilty plea and the fines, jail, and permanent stain on your record that a guilty plea entails.

My name is Joshua Garrett, I am a licensed attorney practicing with Smith Law Firm in the city of Branson, Missouri.  I cover criminal defense cases in most of the Southern Missouri region.  Springfield, Ozark, Nixa, Branson, Greene County, Christian County, Taney County and Stone County.  I can be reached at (417) 544-0315.