On the front page of the Oklahoman on December 27th, there was a story about a pamphlet that the Oklahoma City Police Department had designed and was making available for the public. It was intended to answer questions about what to expect – and how you should act – if you were stopped by a cop. It can be found on OKC’s web page. Click HERE and read it and THEN come back. I’ll wait.
Back? Okay. See any problems with any of this? I sure do.
While it starts out generally just fine and instructive, it goes down hill toward the end. Note the tip concerning DUI. Here it is:
[If] You’re suspected of driving under the influence – An officer may ask you to take a field sobriety test to determine if you’re impaired.
You can refuse the test, but the officer must treat it as a failed test.
Tries to convince you to take their field test, doesn’t it?
THIS STATEMENT IS SIMPLY NOT TRUE.
First, field tests DO NOT determine if a person is impaired. The ORIGINAL developer of these tests (Dr. Marceline Burns) admitted that in a deposition done by an attorney friend of mine in California (Bruce Kapsack) well over 15 years ago. They were designed to determine alcohol levels in the person, AND all of our statutes and caselaw PROHIBITS the government from using these tests as evidence of any alcohol level! NOTHING in the law requires a cop to treat a refused field test as a FAILIED field test!!! This is beyond untrue. I can only interpret that sentence as an attempt to persuade you to waive your right to refuse this parlor game suggested by an officer, so that he can use it against you.
Does refusing a field test give the officer ANY further information to develop probable cause to arrest you? Of course not. How could it? Consider the following example of the type of exchange(s) from dozens of cross examinations by me (or my son Jeff when he was practicing with me):
Q You did not have enough information to come of the opinion that my client was under the influence prior to asking him to take your field test, right?
Q So at that point you did not have probable cause to arrest him?
Q So, you asked him to do some field tests to – maybe – come up with more information to see if there was probable cause to arrest?
Q He refused?
Q And you THEN arrested him for DUI?
Q Exactly what ADDITIONAL information did his refusing to do the field test give you to determine that he was under the influence?
A Well, none I guess.
Q SO, you had the SAME amount of “probable cause” – which was not enough – to arrest him AFTER he refused the field test as you did BEFORE you asked him, huh?
A (no answer)
Without probable cause, any arrest for DUI is illegal!
There’s more. Look at that part about if they stop you on the street:
Police have authority to pat search you for weapons. This is for their safety and the community’s protection.
Good Lord. No, they don’t. A pat search is ONLY permitted if an officer has reasonable – and that can be articulated – suspicion that a crime may be being committed. They can’t just walk up and down the street searching everybody.
And, how about that part under the “Q & A” section?
Do I have to answer questions from police?
Not if your answers could be used against you. However, officers are generally suspicious of those who don’t answer questions. Answering questions is the quickest way to resolve issues.
Or in other words: Assert that right to remain silent, and it won’t go easy for you. Says the same thing. Remember: you have the right to remain silent. Use it.
Charles L. Sifers
Attorney at Law
401 N. Hudson, 2nd floor
Oklahoma City, OK 73102
office – 405-232-3388
fax – 405-232-5144
Oklahoma‘s First Attorney Board Certified
in DUI Defense by National College for DUI Defense
(NCDD) under American Bar Association (ABA) Guidelines
Best Lawyers in America in DUI/DWI Defense Specialty, 2010 thru 2015 ed(s).
Lawyer of the Year, Best Lawyers in America, 2014-2015
Oklahoma‘s First Regent (retired) for the National College for DUI Defense
“The People should NOT be afraid of the Government. The Government should be afraid of the People“.