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Should I Take the Breathalyzer?

Posted on Mon, Aug 12, 2013 @ 16:08 PM

IMG 1750 resized 600Now that people are spending a lot more time at the beach and back yard barbeques, I inevitably hear this question, “Should I take the breath test if I get pulled over?” 

Drink Responsibly−And Know Your Rights

As a criminal defense lawyer and a former prosecutor this is a tough question to answer, because both the “yes” answer and the “no” answer have very serious consequences.  Let’s start with the “yes.”  If you take the breath test and blow more than the .08 limit, you give the police one of the strongest pieces of scientific evidence in their case against you. When it comes to driving under the influence, Florida law is very clear:  if you have a blood alcohol level at or above a .08, you are under the influence. Without this evidence it is difficult, (but not impossible) to prove the case against you. Keep that in mind if you say “yes.”

No Breath Test Means Hand Over Your License For a Year

On the other hand, if you tell the policeman “no,” you still open yourself up to some serious consequences. First, you lose your license for one year.  Open up your wallet and pull out your license. The fact that you possess that license means that you have basically agreed to take the breath test.  It’s called “implied consent,” and if you don’t take the test, the State of Florida will take your license. It’s the law.

Furthermore, although you deny the police a key bit of important evidence against you by not taking the breath test, you also give the prosecutors a strong argument for their case, if you decide to go to trial. Florida law says that if you don’t take the test, the State Attorney can tell the jury that you knew the breath test results would show the police, and later the jury, that you were under the influence. This can be a very effective argument with a jury, should you decide to take your case to trial (remember I said it was difficult but not impossible for the prosecutors to prove their case without the breath test?).  It’s also important to point out that some jurisdictions will not offer you DUI diversion if you do not take the breath test.     

In the end, my answer to the question of “Should I take the breath test” is a question or two of my own. First,  “How important is your license to you,” and second, “Do you have enough money for a taxi?” That usually gives folks the answer they need. 

Topics: Cory Chastang, arrested, miller crosby & miller, breathalyzer, drunk driving, police search, criminal law, death

YOU REALLY CAN SAY “NO”

Posted on Sat, Aug 3, 2013 @ 17:08 PM

dodge charger police car resized 600In almost seven years of criminal trial practice the one thing that always shocked me was why people who were carrying pot, coke, guns or worse ever allowed a police officer to search their vehicle or their person. You just don’t have to do that. As a prosecutor, I never knew what defendants told their lawyers, but over the years, I came to realize they were under one of two misconceptions:

  1. They thought they were going to catch a break, or 
  2. They did not know they could have said “no.”  

Either way, these people were dead wrong and they could have avoided the roller coaster ride of the criminal justice system by just saying “no” when the police asked for permission to search their cars or their persons.  

Here’s what you need to know
First, you WILL NOT be cut a break by either the police or the State Attorney. The policeman or deputy WILL arrest you because illegal is illegal and if they don’t arrest you, they can get fired. Furthermore, the State Attorney is sworn to prosecute crimes, and giving you a slap on the wrist is not in his or her best interest. 

Now let’s talk about the second misconception. You can and should tell the police “no.” They cannot search your vehicle or your person (your pants, pockets, coat, shoes, socks, etc.). Let me give you a scenario I saw all too often. A police officer stops a car for speeding, he runs the driver’s license, he checks for outstanding warrants and writes the driver a ticket for going 70 miles an hour down Wabash. At that point the police officer asks “Can I search your vehicle?”  Surprisingly, the driver would say “yes,” and then not-so-surprisingly, the police officer would find a dime bag of weed, a rock of crack, a baggie of meth, or a 9mm.  What started out as a simple traffic ticket then turned into a trip to central book-in.  

In the end, if you tell the police “No,” they cannot search your car without probable cause.  If the police do search your car without probable cause, you might be entitled to have the evidence they uncover kicked out of your case.  But if you don’t tell the police “no,” anything they find might be used against you. In my next blog, I will discuss the different circumstances where evidence might be suppressed in your case, even though you told the police “yes.”

Topics: Cory Chastang, miller crosby & miller, MCM, police search, criminal law