WHEN I SAY “DONT TALK TO THE POLICE”—

I MEAN REALLY DONT TALK TO THE POLICE

When I do an appeal of a DUI case, it often turns out that the defendant has made the very statements that convict him. Simple statements, usually untrue, about when they had their last drink.

Turns out, this one little fact is the one fact the prosecution expert needs in order to prove how very drunk you were at the time of driving. But no one reads you your rights before they ask you about this. Yes, they have detained you by pulling you over. Yes, you are a suspect in a DUI investigation. But the law is not clear about whether a defendant must be informed of the right to remain silent before he or she is asked about the all-important timeline of their drinking that night.

When an officer asks “When did you have your last drink, sir?” (or madam), the natural response is to exaggerate how long ago it was. It sounds better to say “I haven’t had a drink since that wine at lunch”…etc. Very few people readily respond by saying “I chugged down a lot of gin right before I got behind the wheel.” But guess what?!!— scientifically, your defense is better served by the second answer.

The best course is to Refrain From Answering Questions About What You Drank and When You Drank It. Be Very Vague, or assert the Fifth….just don’t offer up the facts that will later be used to convict you. Especially where your instinct will be to tweak the facts in the wrong direction.

A MESSAGE TO TRIAL ATTORNEYS DEFENDING DUI CASES:
Please make an objection, albeit futile, to the officer testifying to the defendant’s statements concerning his drinking pattern. Often, I want to raise the issue on appeal, but the lack of an objection at trial is a real obstacle.

It is a Fifth Amendment objection, basically. The statements are incriminatory and custodial and un-mirandized (a traffic stop has been held to be custodial for Miranda purposes) and unlike blood, testimonial….they also impinge on a defendant’s right not to testify where his testimony is the only possibly means he has to clarify those un-mirandized statements.

There is a hearsay objection also— The statements do not have the indicia of reliability contained in the usual “admission.” The statements are usually particularly unreliable, as they are made under duress, by a person trying to exculpate himself and unlikely to be perfectly frank, and by a person the prosecution’s expert will tell you is mentally impaired at the time of making the statements, including as to their sense of time.
And the mere fact that the statements come in as admissions bolsters the first argument….

Bottom line, if you object at trial, I can raise it on appeal.