Stand up for yourself ... don't talk, don't walk, don't blow

In the course of defending Utahns accused of crimes, I watch a lot of police videos of DUI investigations. Too many times, I see people give away important constitutional rights that could protect them from criminal liability.

"Drinking alcohol and then driving, without more, is not a crime in Utah." State v. Lehi, 73 P.3d 985, 990 (Utah App. 2003).

But it's easy to get arrested and charged with DUI if you've done both those things.

Therefore, subject to the disclaimers below, please consider the following advice if you've consumed an alcoholic beverage within several hours prior to driving, and have been stopped by a law enforcement officer.



DON'T TALK

If an officer asks you for your license and registration, give them to the officer. But you can identify yourself to the officer without saying anything. If you're asked questions, you can always nod your head affirmatively or shake your head negatively. If the officer's question requires more than a "yes" or "no" response, you can hand the officer a note that reads "I have nothing to say. I don't consent to any searches. Am I free to go?"

If you don't have something to write on or write with, bite your tongue and stay mute.

If you are later arrested, you can always amend your note to read "I have nothing to say. I don't consent to any searches. I want a lawyer."

Talking not only gives away your right to remain silent. Opening your mouth also gives an officer the ability to testify that your breath smelled of alcohol or a controlled substance.



DON'T WALK

If you are asked by an officer to perform roadside maneuvers to investigate whether you are "safe to drive," you may decline to perform these maneuvers. ("[A] suspect or accused cannot be 'compelled' to perform roadside or field sobriety tests." Salt Lake City v. Carner, 664 P.2d 1168, 1173 (Utah 1983) (Durham, J. concurring).) These "standardized field sobriety tests" -- checking your eyes for horizontal gaze nystagmus, the walk-and-turn, and the one-leg stand -- merely give evidence that can and will be used against you.

A prosecutor with the Salt Lake County District Attorney's office recently arrested for investigation of DUI exercised his right to decline to perform these roadside maneuvers. Learn from his example.



DON'T BLOW (PRIOR TO ARREST)

There's also no legal requirement to take a portable breath test (also called a "preliminary breath test") prior to your arrest. Here are some examples of what portable breath testers look like.

IMPORTANT CAVEAT: If you are asked to give the officer blood, breath, or urine samples after you are arrested, there may be civil penalties for refusing to give such samples. Even if you are not eventually convicted of a crime, those civil penalties may include the suspension of your driver license for 18 or more months, and the requirement of an ignition interlock device on any vehicle you drive for three years. Although different facts in a particular situation might change my advice, if you've followed my advice up to this point and you've already been arrested and the officer has read the statutorily-required warnings to you, I recommend consenting to tests of your blood, breath, or urine.

You do not have the right to contact a lawyer before taking these tests, or to have your lawyer present with you during these tests. But you do have to right to obtain your own independent test after you have consented to the officer's tests, and you should demand your own independent test as soon as possible.

Be safe out there.

Yours in liberty,

Rob Latham

P.S.: In my last post, I mentioned clips from a video produced by the Flex Your Rights Foundation. The entire video is now available for viewing at no charge online here or by clicking on the picture below. It has more valuable information in addition to what you've read here.





And you can support the Flex Your Rights Foundation with your tax-deductible donation here.

DISCLAIMER: ROB LATHAM CANNOT BE HELD LIABLE FOR THE CONSEQUENCES OF ANY PERSON'S RELIANCE ON THE INFORMATION ON THIS WEB SITE. THE LAW IS COMPLEX, MANY SIMILAR FACTUAL SITUATIONS ARE LEGALLY DIFFERENT, AND FEDERAL LAW DIFFERS FROM STATE LAW. THE INFORMATION CONTAINED ON THIS WEB SITE IS NO SUBSTITUTE FOR LEGAL ADVICE FROM A LICENSED ATTORNEY WHO KNOWS THE FACTS OF YOUR SITUATION. IF YOU REQUIRE LEGAL ASSISTANCE, YOU SHOULD SEEK THE SERVICES OF A LEGAL PROFESSIONAL.