Driving under the influence is a serious crime. Once every year in Mississippi there is a serious, high profile crime by a person who is drunk. The facts follow a common pattern. The person who is drunk runs a stop sign, red light, or goes the wrong way on the Interstate, striking another car and either seriously injuring or killing one or more people. There is an arrest, indictment, numerous newspaper articles, and a public outcry. There is really no excuse for driving drunk. Everyone knows a friend who would be willing to come and get them if they called and said they had too much to drink. A cab would only cost about $30-$40 dollars, which is far cheaper than the fines and attorney costs for defending a DUI charge. More importantly, a cab ride may cost you a little money, but I can assure you it will not hurt as much in the morning as a ride in a police car to the State Prison if you get in a wreck and injure someone while you are drinking and driving.
I wrote in my past Blog Article about Driving Under the Influence and the Intoxilizer 8000 which is the machine used by Mississippi Law Enforcement to test the Blood-Breath ratio. If you take the Intoxilizer 8000 and register above a .08% you are going to be charged with DUI regardless of how you were driving. I have expressed my opinion on this subject before. The police need to catch drunk drivers who are a danger to the public. However, what I see every day are police officers who sit around during the evening and look for reasons to pull citizens over so they can take them to the police station and charge them with DUI. These officers are aiming for a gold, electro-plated pin for obtaining over 100 DUI arrests in a single year. The award is given out each year at a State Law Enforcement Banquet.
So the question is this: If you are out driving at night and get pulled over what are your rights? What do you have to do for the Officer? Do you have to take the roadside tests? The answer to these questions is no. But the answer is complicated and has consequences. First you need to understand that Mississippi makes it illegal to drive under the influence of alcohol or any other substance. People come into my office after being arrested and they say, "...but Mr. Coxwell, I was not drunk. There was nothing wrong with my driving. The officer pulled me over for no reason." When I talk with these clients, listen to them carefully, and look at all the facts, I can see that what they say if absolutely true. They were not driving carelessly, recklessly, or endangering anyone. But they were still arrested.
The situation around Madison County has gotten so bad that the Judges have had to declare that if a person is driving and the car is slightly moving inside their lane of traffic, that does not constitute careless driving. This was necessary because police officers were stopping people at night under the guise of weaving when the wheels of the car never crossed the center line or went off the road. It is impossible to drive a car in an absolutely straight line. Everyone is going to move around inside their lane of traffic. Many officers were more interested in getting arrests than protecting the public. Almost everyone has encountered these types of officers before at sometime.
So, if you are stopped at night what are your rights. First, you do not have to blow in a Portable Breath Test Machine. This is a small hand-held device that officers carry with them. It merely detects the presence of alcohol and gives the officer probable cause to take you to the police station ask you to blow in the Intoxilizer 8000. You also do not have to take the Field Sobriety Tests. I may sound cynical when I saw this but I have seen sober people fail the Field Sobriety Tests at night when an officer wants a DUI arrest. You have the right to refuse to take the Field Sobriety Tests. I will tell you that the officer(s) may get mad. I have been around police officers and have defended them many times over my 29 years of law practice. They are human. They are in positions of power and they believe that whatever they say goes without question. They want you to take these tests and they will often say whatever they think is necessary to get you to take the tests. Remember, you have the right to refuse. You should always be polite and respectful to a police officer. They have difficult jobs and they do deserve our respect. But on the same hand when they stop you at night for no reason, the decision on whether you want to cooperate in these tests is your decision and not the decision of the officer.
When you are stopped at night you should also remember that what you say to the officer matters. Police have the right to stop you at night if you commit a traffic violation or if they have a reasonable suspicion that you may have committed a crime. Once they stop you they can require you to produce your driver's license or other identification and they may make inquiries about your activities. Since you have only been briefly detained, the police do not have to give you the Miranda Rights. The Miranda Rights are required when you are in police custody and before they start questioning you about a crime. Traffic stops are different. At some point a traffic stop may go long enough that it becomes a detention, but the law does not require the police to read the Miranda Rights when they make a traffic stop. But anything you say to the police officer while he has you stopped may be admissible against you if you are arrested for a DUI. This is always a very difficult position for the citizen. The police have a right to ask you to produce your driver's license and they are going to ask you what you are doing out at night. The more you talk the more likely they may start questioning you about what you had to drink so they can formulate enough information to take you to the police station for DUI. If you refuse to answer any questions the police are going to feel their authority and power is being questioned, so they may get very angry. This is a situation where you must decide what rights you want to invoke.
In the above paragraph I described the citizen's choices. If you get stopped the police are going to start questioning you. You must give them your driver's license, registration, auto insurance. You do not have to admit to drinking. You do not have to take the Portable Breath Test. You do not have to take any Field Sobriety Tests. If you make the decision to exercise your rights and refuse the tests, understand that the police officer is not going to be happy with you. He is going to get mad. He may call another officer who also gets mad, or one officer may act mad, and the other officer act as if he is your friend. Their goal is to get you to do something or say something they can use against you in Court. I have found very few police officers who like it when a citizen decides to exercise his constitutional rights. When I have defended police officers for alleged wrongdoing, every one of them want the full protection of their constitutional rights. If you feel you have been wrongly stopped, are being unfairly treated, and you do not wish to help the officer with evidence he can use against you, then you will have to make the hard decision of whether to refuse the Portable Breath Test, the Field Sobriety Tests, and you will have to exercise extreme caution when talking with the officer. You may always request your right to speak with an attorney before answering any question about what you had to drink. The officer is not going to permit you to call a lawyer. He is in all probability going to arrest you for DUI, but the truth is he is going to arrest you for DUI anyway.
There is an old saying that goes, "You catch more fly with honey than vinegar." This means that no matter what you do on the street when you get stopped, be polite to the officer. You can invoke or use your rights, but do so politely. You can refuse the tests if you wish, that is your right, but do so politely. The officer will probably get very mad. Don't get mad or angry. Don't be cynical. Keep your cool and be polite. Often times the law enforcement officers have video cameras and body microphones that may be recording you during the stop. Our law firm has learned over the years that videotapes are often the citizen's best evidence against the exaggerations and misstatements made by many police during a traffic stop. We have won many DUI cases when the judge viewed the video and saw that it did not show a scene or a client in the condition testified to by the police officer. One other thing you should remember. Police officers almost always say that the person "smelled of alcohol, had bloodshot eyes, was unsteady on his feat, and slurred his words." When you get stopped be conscious of your physical behavior. Stand up straight. Don't lean back on the car. If you lean back the officer will say you had to lean on the car for balance. Speak clearly. Know where your driver's license, registration and insurance car are located in your car. If you have to look for them the officer may say you fumbled around looking for them and he will tell the Judge that to him this means you were under the influence.
When you get out at night and you have a few social drinks you are taking a big risk. There are many police that will stop you just because you are out late at night. They assume you are drinking and look at everything from that point on with an "evil eye" that sees you as someone under the influence. You must produce your driver's license, registration, and insurance card, but you do not have to take the Portable Breath Test, the Field Sobriety Test, or admit to any consumption of alcohol. These are your rights. Be prepared for a mad officer, but the real odds are are this: If the officer stopped you and suspects you have had a drink, you are going to jail anyway. Finally, be careful what you say. Anything you say may be used against you. There is no such thing as an "off the record conversation or statement" with an officer who is interested in arresting you.
My writings are designed to inform you of your rights. Whether you choose to exercise those rights, or do every single thing the police officer asks is completely up to you. These are your rights and choices. You can use them or lose them. I hope though after reading my series on DUI you will consider calling a cab if you have had a few drinks. A few drinks is more than enough to cause you to go over .08% on the Intoxilizer 8000. I will write more on this topic in the next day or so.
Coxwell & Associates is a law firm concentrating on limited areas of the law which include criminal defense, DUI, and serious accidents. Many lawyers advertise that they handle DUI. Coxwell & Associates is the firm that professionals, doctors, medical students, and a prior judge have sought out for representation. The firm practices all across Mississippi, with an office in Jackson, Hinds County, Mississippi. The attorneys practice in Madison and Rankin Counties as frequently as they practice in Hinds County.
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