If defense attorneys had their way, officers would be required to give Miranda warnings immediately following the stop, rather than the arrest.
The investigating officer would be required to tell you, up front, that the purpose of their questions was to develop enough probable cause to arrest you, that you didn’t have to cooperate, and that, while you should be polite, you probably shouldn’t cooperate.
It’s totally ok to politely inquire whether the officer is asking you to do something or ordering you to do it. You must obey orders, but you don’t have to comply with requests. Many officers use tone, expression, and/or other tricks of intimidation to make you feel like it’s in your best interest to cooperate; don’t be coerced to give up more than you have to!
Assume that you are going to be arrested, and that nothing you do or say will change that. In fact, anything you do or say will be twisted to sound way worse, and just make the prosecutor’s job easier – and your attorney’s job more difficult.
In an ideal world (from a defense perspective), a DUI stop would go something like this:
Officer: “Do you know why I stopped you? Wait- you don’t have to answer that question. In fact, answering that question is probably a bad idea, because I will use whatever you say to prove that the stop was valid in case your attorney tries to challenge the stop later. If you say yes, you do know why I stopped you, I will consider this an admission of guilt – at least as to a traffic infraction. Your attorney would almost certainly tell you to say: ‘no, I don’t know why you stopped me.’ But go ahead and tell me anything you want to. But, remember: you don’t have to, it’s totally up to you.”
Danny the Driver: “No, why did you stop me? By the way, I am recording this on my cellphone[1].”
Officer: “I stopped you because I don’t like the cut of your jib. I didn’t observe any traffic infraction.[2] Have you been drinking tonight? By the way, I wouldn’t answer that question either, if I were you. Although it is not technically illegal to drink and drive (it’s only illegal to drive if you’ve had too much to drink) if you admit to drinking, I am going to assume that you are under-reporting how much you’ve had, that you’re impaired, and I will likely arrest you no matter what happens next. Your attorney would probably advise you not to lie to me, but not to answer truthfully if you have been drinking. Of course, if you refuse to answer I will assume you have been drinking, but I need more than a hunch to legally arrest you.”
Danny: “I have been advised never to answer that question, whether or not I have had anything to drink.”
Officer: “Good answer. Okay, would you like to perform some voluntary field sobriety tests for me? If you pass them, that might convince me that you are okay to drive, but I should warn you that nobody ever passes these tests. They are completely subjective, and I’m totally going to report that you had all kinds of problems doing them even if you ace them. I can’t stress enough that they’re completely voluntary. You totally don’t have to do them. But if you really want to voluntarily supply me with the evidence I need arrest you, go ahead.”
Danny: “No thanks.”
Officer: “Good call. Okay, what about blowing in my portable breathalyzer here? These aren’t super accurate; they can’t even be used as evidence in court. Your license won’t be suspended if you refuse – that’s the one at the station. But I can’t make you take the breathalyzer at the station unless you give me enough to arrest you. So why would you blow? If you blow and there’s an alcohol reading, even if it’s under the limit, I’m very likely to arrest you, and the arrest will probably hold up in court. Even if you are positive that you will blow a 0.0, why submit to this test? Let’s say you pass it; I might just say ‘well you must be on something’ and arrest you anyway. Why give me any reason to test your blood for drugs? The blood draw procedure is invasive and it takes a long time. Even if it turns out there’s nothing at all in your system you’re going to have the rest of your night wasted. The only downside to refusing the voluntary portable breathalyzer is that I’ll assume you have something to hide, but again, I can’t legally arrest you based on a just hunch and your attorney will have a field day if I do. The best policy is to make me arrest you on as little probable cause as possible and let the alcohol continue to dissipate out of your system while I transport you to the station to take the BAC test that actually counts. So, do you want to do the portable blow for some strange reason?”
Danny: “No thanks.”
Officer: “Great. Well, all I have to go on are my personal observations then. I’m going to write in my report that you were swerving all over the road. I’m also going to write that your eyes are bloodshot and watery, because I put that in every single DUI report I write. In fact, if I’m being completely honest here, I’m pretty much just going to cut and paste my last report into yours. I’m also going to say that I noticed an odor of intoxicants, and that you are slurring your speech. Good thing you’re recording this, though, because you don’t actually sound too intoxicated, so you should be able to undermine my credibility pretty effectively.”
Danny: “Sounds like you’re letting me go.”
Officer: “Oh, no. I decided to arrest you, a long time ago, no matter what. So now I’m going to do just that. Remember though, you have the right to remain silent, and nothing you say is going to change my mind about arresting you, so if I were you I definitely wouldn’t say anything else – this absolutely includes not answering any of the questions I will try to ask you at the station – except that you would like to speak with an attorney[3]. By the way, a really good Tacoma DUI attorney is Barbara Bowden. You should give her a call ASAP.”
Danny: “I want an attorney. I refuse to answer any more questions. Actually I probably should have just said that at the very beginning.”
Officer: “Yep.”
Disclaimer: I am not encouraging you to go out and break the law and/or trying to help you get away with doing so. I just want you to know your rights, and that it’s okay to assert them. This article is not intended to be taken as “blanket” legal advice – every situation is unique. It is very important for you to consult an attorney as soon as possible to discuss your particular situation.
[1] “Washington state and federal courts have upheld the right to record or observe the police performing their official duties in public, so long as the conduct does not interfere with police doing their job. Individuals should keep a reasonable distance from police and take care to not actually interfere with police activities while recording.” http://www.aclu-wa.org/docs/know-your-rights-guide-protests
[2] If this is true, no evidence gathered from this point on will be admissible and your case will very likely get dismissed!
[3] As soon as you “lawyer up” the officer has to stop asking you questions. Don’t wait until the officer gives you your Miranda warnings – by then you’re already arrested and it’s likely too late. LAWYER UP THEN CLAM UP – even if you’re innocent.
