Instead of a dry, boring article, the following is an excerpt from a recent interview with Attorney Leckerman on the subject.
Interviewer: How about if you, Kevin Leckerman, were stopped and accused of DUI or DWI, what would you do, who would you call, and why?
Leckerman: Well, the first thing I would do, before I even get into the vehicle, I would definitely make sure that I didn’t have too much alcohol and that I am not intoxicated, otherwise I clearly would not drive a vehicle.
However, if I did have some alcohol, there are a few things I would do even before starting to drive. First, I would have all of driving documentation, including registration, insurance and license, readily available to prevent fumbling through these documents. Any minor misstep that is made by a driver is going to be perceived as some type of evidence of intoxication, whether or not that is true. So having your documents readily available should prevent an officer from making a claim that you were fumbling through documents to find your driving credentials.
Once you notice that an officer has put on emergency lights, clearly you should pull the vehicle over in as safe a manner as possible utilizing turn signals and parking the car in a proper manner. Once the officer has approached the vehicle, you’d want to give clear and concise answers. You do not have to make any admissions concerning the consumption of alcohol. Actually, you don’t even have an obligation to answer any of the questions being asked. Again, even if you are not intoxicated, the admission to consuming alcohol can be misconstrued by a police officer or used as a cue to initiate a DUI investigation.
The officer may ask you to do certain field sobriety tests. If you have any physical limitations, you should tell the officer immediately. Often, the roadside investigations will be videotaped and audio taped. You want to make sure that there is evidence on these audio and video tapes of any physical issues that you may have that could prevent you from doing a field sobriety test properly. Again, if you fail to do a field sobriety test properly, that is going to be information that the police officer is going to use against you. So, it is your duty almost to make sure that this officer is well aware of any physical limitations that you may have.
You can decline to participate in field sobriety tests, if you feel that you won’t be able to do them well. I would not participate in any field sobriety testing, because I don’t feel that they are accurate indicators of sobriety. There are a number of factors that can prevent the proper performance of field sobriety tests. Nervousness is a factor that can affect anyone’s ability to perform not only balance tests, but a rudimentary test such as an alphabet recitation or counting backwards.
Interviewer: Let me back up a little bit. What if an officer stopped you, and he came to the window and he said: wow, how many drinks did you have? Literally, what would you say if a police officer said that to you?
Leckerman: Well, I would not answer his question. I know it would be difficult for most people who do not routinely deal with the police to not answer questions, but that it your right as a citizen.
Interviewer: What if he said, “Well I can smell alcohol, so tell me the truth, how many drinks did you have?”
Leckerman: I would either say nothing or would politely decline to answer his question.
Interviewer: Do you literally say, “I’m sorry I can’t answer that.”
Leckerman: No, I would just say nothing. When an officer is doing his investigation, he can ask you any question that he wants, but the only obligation that you have concerning information that you need to give is the obligation to provide driving documentation. Other than that, you have no obligation to provide any incriminating information.
Interviewer: Okay, because I would guess there are some officers that would try to press you and say: “C’mon, I know you are lying, I can smell the alcohol, you have obviously been drinking, so tell me how many drinks you’ve had. I would think that would really pressure someone to talk. That is why I wanted to know literally what you would say if someone said that to you.
Leckerman: Well, alternatively I may say that I don’t want to speak to the officer concerning that issue without an attorney present.
Interviewer: OK. Yeah, I just wanted to literally get an idea of what you would say in a situation where you are very nervous, and they could be pressuring you. The same with field sobriety, what if they say: “Alright, I’m going to need you to step out of the car, and I’m going to take out my pen, and I’m going to need you to follow the pen with your eyes” and they say it as a matter of course as if you don’t have a choice to say no. What would you say if they say that to you?
Leckerman: You can say you don’t want to do any field sobriety tests. You don’t have to participate in any field sobriety testing whatsoever. There is the potential that by declining to take the field sobriety tests they could try to use that evidence against you as some type of admission of guilt. However, you don’t have any obligation to take the field sobriety tests, and I would never participate in any field sobriety test.
Interviewer: Alright, and just to be clear- field sobriety is walking the line, doing the alphabet backwards, finger to your nose, follow the pen, versus chemical tests which are completely different- blood, breath, urine- just to be very clear.
Leckerman: Yes, that’s correct. In Pennsylvania and New Jersey, there is no uniform system of field sobriety testing. So, before you are arrested, a police officer can ask you to do a portable breath test, finger to nose touch test, the one leg stand, walk and turn test and myriad other field sobriety tests that he or she can even make up in order to determine if you are under the influence of alcohol. That’s why they are not reliable forms of testing. Even the portable breath test device is not reliable and it is not admissible evidence in either Pennsylvania or New Jersey.
Interviewer: The last part of the question: what would you do if you were stopped and the situation gets to the point where they are placing you under arrest – maybe you haven’t said anything, maybe you have- do you have any other particulars that you would do or not do as you are being arrested?
Leckerman: Well, you have the obligation in both New Jersey and Pennsylvania to provide a chemical sample for testing. There is rarely a good reason to refuse because of the enhanced penalties that are involved. However, I would give breath or blood for testing. Chemical testing is not infallible and can always be challenged and successfully disputed in court. A refusal on the other hand is much more difficult to actually dispute and keep out of evidence.
Depending on the situation, I would also consider getting an independent blood test if I were released from custody soon after being arrested. The best way to get independent testing is go to a private laboratory, if one is open at that time, have them take a blood sample, and then have it sent to a forensic laboratory for blood testing.
The other thing is that, once I’m taken back to the station, I would not speak to the police at any point. I would invoke my right to remain silent and advise the police that I wish to speak to an attorney and not speak to them. The right to remain silent shouldn’t be confused with a right not to give chemical samples for testing. Your right to remain silent is not a right to refuse to give chemical samples for chemical testing.
Interviewer: Do you anticipate by saying “I am invoking my right to remain silent, I really I can’t say anything unless I speak to an attorney” that will lead to worst treatments, longer incarceration, any negatives versus talking?
Leckerman: Well, I wouldn’t use the words, “invoke my right to remain silent.” I would just say that I am not going to answer any questions and that I want to speak with a lawyer. I have only seen a case become worst after a client starts talking to the police. Giving information to the police that they can use against you never helps your case. I have never spoken with anybody who says I totally cooperated with the police and they didn’t charge me. It’s your constitutional right to not provide information to the police that they can use to prosecute you and remaining silent should never be something that is utilized in a negative manner by a prosecutor or a court.
Interviewer: Okay. There is one last question that I have. What about cases where you have to do a chemical test, for instance breath is probably where it happens. I don’t know if this is actual reality or not, but you try to blow, you can’t blow hard enough, or the machine is just not working. You’ve blown in it five or ten times and then the officer marks it down as a refusal. Have you seen such cases and what tends to happen when those set of circumstances happen?
Leckerman: If I’m understanding your question right, if you attempt to blow into a breath testing machine and the machine is not taking a reading from any one of your breath samples, is that right?
Interviewer: Yeah, or you have a problem with your lungs, you have asthma, short of breath, whatever it may be. You are trying to blow hard-
Leckerman: There could be a number of reasons why the machine fails to analyze breath samples. First, the machine may not be operating properly. It is absolutely essential to obtain all of the documentation concerning whether the machine was properly calibrated or certified for accuracy, whether the person operating the machine was properly certified, whether the chemical materials used as controls for the breath testing were properly certified. You should ask for the internal data from the breath testing machine as well, so you can analyze how the machine was operating at the time the client was breathing into it. So, there could be functional problems with the machine which lead to it not operating properly or not reading breath samples properly and that certainly can be used as a defense.
If somebody has pulmonary issues, medical documentation would be necessary in order to put together an effective defense. A person who tries to blow into the machine who may have lung capacity issues such as chronic obstructive pulmonary disease, otherwise known as COPD, or asthma, those can be adequate defenses to a refusal charge provided that there has been some effort to blow into the machine. Sometimes police officers will claim that the driver was not following the directions to breathe into the tube properly or appeared to be trying to circumvent breathing into the tube properly. The machine should indicate how many liters of air were actually blown into it and that would serve as some type of record of an effort to blow into the machine. If the person has diminished lung capacity, a medical professional who has documented that condition should be utilized in order to generate a report that could be given to the prosecutor in order to get the charge thrown out.
The bottom line is that when you have tried to give breath samples, but were unsuccessful, there are definite ways to defend a refusal allegation.