With the holiday season in full swing, I thought it would be appropriate to review the basic rights we all have when dealing with the police and provide some suggestions for those unfortunate enough to have contact with the police in the midst of their holiday reverie. While most people pondering the holidays may envision sugar plums, festive decorations, gifts and family gatherings, the police view holidays as a time to crack down on DUI. Indeed, the Nation Highway Traffic Safety Administration recently announced that it has “kicked off its annual ‘Drive Sober or Get Pulled Over’ winter holiday crack down on drunk and drugged driving.” The unfortunate fact is that the rate of DUI arrests increases over the holiday season for several reasons: (1) people are celebrating with family and friends, often including alcohol in the festivities; (2) the holidays are a stressful time for many, leading some to increase consumption of alcohol and/or prescription drugs; and (3) law enforcement is almost always engaged in some sort of holiday “crackdown”. Needless to say, this can be a very busy time for DUI defense attorneys.
It is not illegal to drink and then drive in Arizona, but it is illegal to drive while impaired by alcohol or drugs, or to drive with a blood alcohol concentration (BAC) of .08 or more. Of course, it is nearly impossible for the average person to know when they have reached this legal limit. Thus, holiday season or not, you should try to avoid drinking and driving altogether. If you do happen to get stopped by the police, whether you think you may be driving under the influence or not, keep the following in mind:
- BE POLITE AND COOPERATIVE — There is really nothing to gain by being rude, hostile or argumentative with the police. Police officers have a job to do just like the rest of us. They are also human, and the way you deal with them can influence how they treat you. In DUI cases, for example, an officer usually has discretion as to whether he releases you following a DUI investigation or books you into the county jail. When an officer decides to book someone into jail on a misdemeanor DUI charge, it is often a result of that person’s attitude.
- AVOID CONTACT IF POSSIBLE — Never run from the police! However, if you have contact with the police, ask whether you are free to leave. If you are free to leave, then calmly leave. If not, then you have a right to know why. It is important to establish whether you are being detained, because the police must justify any detention. At some point, a prolonged detention turns into a de facto arrest, which then triggers other rights.
- YOU HAVE THE RIGHT TO REMAIN SILENT — This is an important right that most people seem to be aware of but few actually assert. I can’t tell you how often I see clients who make statements to the police for a variety of reasons – because they think they have done nothing wrong, because they think the police officer is a nice guy and will not charge them if they are honest, or because they think they can get out of the situation by lying to the police officer — only to have those statements used against them later. The police officer has a job to do and he will charge you if he thinks you have committed a crime. The questions he is asking essentially have one purpose: to determine whether you have committed a crime. While it is important to be polite and cooperative, it is generally not advisable to answer these questions. It often makes matters much worse if you attempt to lie to the officer. Simply tell the officer that you want to invoke your right to remain silent. This is a constitutional right, so the police officer should not hold it against you.
- YOU HAVE THE RIGHT TO REFUSE CONSENT TO SEARCH — If a police officer asks you if he can search your car, your house, or any of your belongings, you have a right to say no. Again, this is a constitutional right, so the police officer should not hold it against you. The officer might conduct the search anyway, with or without a search warrant, but at least you have not consented to the search. When you consent to a search, you are usually giving up the right to challenge it in court later.
- ASK FOR AN ATTORNEY — If you are under arrest, you have the right to an attorney. If you ask for an attorney, the police must stop questioning you and should provide you with the opportunity to call a lawyer and speak with them privately. It is a good idea to have a lawyer’s phone number on hand in this situation, but, even if you don’t, the police must honor your request and cease any questioning until you do have an attorney. If you are ultimately charged with a crime, you should consult with and experienced Tucson defense attorney as soon as possible.
* This blog is published by Tucson DUI and criminal defense lawyer Nathan D. Leonardo. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.