Walk the Line? Challenging a DWI charge requires a lot of sober consideration




It might surprise you if you're a frequent viewer of detective shows or courtroom dramas, but a policeman who stops a motorist and inquires as to whether and how much he or she has been drinking does not have to read that motorist the "Miranda" warning."I get calls all the time from people saying, 'They didn't read me my rights,'" says Lancaster attorney Leonard Harden. "It only matters when you're under arrest." But you don't have to hear the warning to exercise your right to remain silent. And silence is golden, defense attorneys say."I would say that's true in any criminal case, but in a motor vehicle case, certainly, yes," Harden says. "If you don't talk, you should be able to walk out of the situation." Yet many motorists convict themselves with their own words, he says. "People make all kinds of incriminating statements." Among the worst is "I only had a couple [of drinks]," which confirms that the motorist has been drinking and increases suspicion of impairment by the inquiring officer. "If you're going to say something like that, give a specific number: say 'two,' not 'a couple,'" says Harden. But he strongly recommends saying nothing at all and not just about drinks."I advise people that if you get stopped, you have to provide your license and registration. You don't have to answer any questions: where you're coming from, where you're going, what you've been doing." People often answer such questions because a police officer is an intimidating presence and because they want to be cooperative. "People generally want to be nice and they want to help each other," he says. "But you don't have any obligation to provide evidence against yourself. You have a right to just say, 'No, thank you.'""I simply ask people to be polite," Harden says. "There is no reason to be rude or disrespectful. Just say, 'I want to go home. I don't want to talk. I want to get going,'" And, Harden likes to remind people, they can refuse to take the field sobriety tests. But what if the officer insists?"If they make you take it, a good lawyer can get the results suppressed," Harden says.The field sobriety tests consists of three tests performed at roadside under the watchful eyes of the investigating officers. In the horizontal gaze test, the motorist is required to keep his head still while following with his eyes the motion of a pen point or penlight in the hand of the officer. The motorist may also required to walk several paces and back, heel-to-toe with his arms at his side and to stand with one foot off the ground while performing some verbal task like counting backwards from 30.The tests can be difficult even for one who is not impaired, defense lawyers say, though someone who submits to them should be careful not to complain in the presence of the police."The stupidest thing someone can say - and I've seen it more than once," says Manchester attorney David Horan, "is when someone is having difficulty standing on one leg for 30 seconds and says something like, 'I couldn't do this if I were cold sober.'" Any evidence of impairment can be used against the motorist, so Horan, like Harden, advises against answering questions or taking the field sobriety tests. "But it takes a sophisticated person to follow that advice. An impaired person is probably not going to follow the advice I'm giving you."There are many reasons besides impairment by alcohol that one might "flunk" a field sobriety test, says John Tenn, a Manchester attorney. Tenn recalled one case where he was able to demonstrate in court that it was his client's overweight condition that prevented her from passing the test. "A more common scenario is that of a person who has worked a 60-hour week and is very fatigued and is driving late on a Friday or Saturday night, heavily sleep deprived. He or she is going to have an incredibly difficult time performing satisfactorily on a field sobriety test."There is often a considerable stress factor involved in undergoing tests of physical dexterity late at night or in the early morning hours on the side of a highway with high-speed traffic whizzing by and the driver worried that he might be about to lose his license, job and ability to make the mortgage payments on his home, says Exeter attorney Ryan Russman. "Marcelline Burns, who designed the field sobriety tests for the National Highway Traffic Safety Administration, testified under oath in the 1980s that there is no correlation between the ability to drive and performance on these tests," says Russman, who is not impressed by the NHTSA seal of approval. "This is the federal government that gave us the $300 ashtray," he says.A motorist under suspicion of impairment faces a difficult decision if brought into the police station and asked to take a blood or breath test. Refusal will result in an administrative suspension of the suspect's driver's license by the Division of Motor Vehicles and the suspension remains in effect even if the motorist is found not guilty in court. It may be appealed at an administrative hearing at the DMV, but the suspension survives the challenge 95 percent or more of the time, Tenn says, pointing out that while a guilty verdict in court requires a finding of guilt beyond a reasonable doubt, the judgment at an administrative hearing is based on the lower standard of a "preponderance of the evidence." On the other hand, a motorist who takes the test and is found to have a blood alcohol level over the legal limit of .08 faces tougher penalties, including a nine-month loss of license and a $500 fine for a first-time offender.Police are not required to allow the detainee to call an attorney for advice before deciding on whether to take the breath or blood test, though some departments do it allow it, says Russman. He notes the difficulty in advising the client at the other end of the line, knowing that a police officer is standing right there overhearing one half of the conversation."I don't ask them to give me a number," when trying to determine how many drinks the client has ingested, he says. "I just start counting from one and have them tell me when to stop."Relatively few drunk drivers are apprehended at DWI checkpoints, says Harden, who contends the roadblocks are an abridgment of a driver's constitutional rights. "You can be driving perfectly well, doing nothing wrong and still be stopped and detained by police," he says. Detaining someone without "articulable reasonable suspicion" of illegal activity violates the Fourth Amendment to the U.S. Constitution and Part I, Article 19, of the New Hampshire Constitution, he maintains.While prosecutors and defense lawyers debate constitutional issues, occasionally a motorist comes up with an effective strategy of his own for thwarting prosecution on a DWI charge. Harden recalls one he calls "brilliant." The motorist, when stopped, turned off the ignition, tossed the key out the window and "chug-a-lugged a fifth of vodka right in front of the officer." Any impairment could easily be attributed to the drinking the police witnessed after he was no longer driving. He was convicted for violation of the open container law, but acquitted on the drunk driving charge."That's not something I recommend," Harden hastens to add. "I recommend being safe and responsible and not drinking and driving." NH

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