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Protecting Your Rights


“Can They Really Do That?”

Your Rights Before and During an Arrest

In order to enjoy your rights, you have to exercise them. Even though police officers cannot force you to do something they can always ask. There is almost nothing an officer cannot do if you give that officer permission. Unfortunately, it is not always easy to tell when an officer is asking and when an officer is demanding; both tend to be equally intimidating.

In Virginia, there is a fine line between an officer ordering you to do something and an officer asking you to do something. If an officer says, “Please get out of the car,” is that a request or an order? If it is a request and you get out of the car, then you may have consented to give up the right not to be removed from your car.

If you ever have any doubts about whether you are required to obey a police officer, clearly and politely ask them whether they are ordering you. If they are not ordering you to do something, refuse. If they are ordering you, obey the order and hire a good DUI attorney. Any evidence obtained by violating a driver’s rights may not be admissible in court.

What Is My Right to Remain Silent?

In a DUI stop you do not have to answer any questions. You only have to show your driver’s license and your registration. If you must obey a direct order from the police officer, do so in silence.

Remember that police officers’ most effective tools are their mouths. Officers never ask casual questions. When a police officer approaches you, everything the officer says is calculated to extract evidence. Officers in Virginia are good at what they do.

In a DUI situation, police will ask you several questions: “Do you know why I pulled you over tonight?” “Have you had anything to drink?” “How much have you had to drink?” “What did you have to drink?” “When did you have your last drink?” “Where were you drinking?”

These questions are designed to collect evidence against you. If nothing else, they want you to talk to them in order to see whether you are slurring your speech.

Officers may use your conversation as evidence against you. Comments which seem innocent on the surface may be harmful at trial. For example: If you do not answer questions quickly the officer may testify that you were slow and unresponsive (presumably because you were drunk). If you say that you are lost or if you don’t know exactly which street you are on then it may be interpreted that you were so drunk you did not know where you were.

Do not talk to the police, whether you are in your car, on the side of the road, in the police cruiser, at the jail, or in front of a magistrate. Anything you say can be used against you. Simply hand them your ID and registration, and say nothing. Then hire the best attorney you can afford.

What Is My Right to an Attorney?

Your right to an attorney means that you have the right to have an attorney present during an interrogation. It also means that you cannot be tried and sentenced to jail without the opportunity to have an attorney represent you in court.

Most people do not get a chance to call their DUI attorney until two to eight hours after being arrested. However, as soon as you are arrested, you have the right to have your attorney present during an interrogation (but not during the breath test).

If you clearly tell a police officer that “I do not want to talk to you until I have talked to a DUI attorney,” that officer is not allowed to ask you any more questions that are designed to gather evidence.  If the officer continues to ask you questions, just repeat that you do not want to talk until you get an attorney. Tell your attorney what happened. Any evidence collected by interrogating a driver after he asks for an attorney may not be admissible in court.

However, if you voluntarily start talking and tell the police information without being asked, anything you say can be used against you.

What Are the Miranda Rights?

On television, when the bad-guy is arrested, the police say something along these lines: “You have the right to remain silent. Anything you say or do may be used against you in a court of law. You have the right to an attorney. . . “

These rights are called the Miranda rights, and the police are not allowed to interrogate someone who has been placed in custody until they have told that person their Miranda rights. If the police interrogate you after arrest but before reading you your Miranda rights, the results of that interrogation may be inadmissible in court. The best way to protect your Miranda rights is to remain silent throughout the entire DUI stop, arrest, and booking process.

Do I Have to Take a Field Sobriety Test (FST)?

FSTs are a series of exercises or tests used to determine sobriety. Many of these tests are difficult even for a sober person. Any test that you take on the side of the road is completely voluntary. The police cannot make you take any field sobriety tests. Never submit to field sobriety tests.

Can They Impound My Car?

When a driver goes to jail for DWI, if the car is not already legally parked, the car is towed and impounded. An impound yard charges the owner about $120 plus $60 per day. However, if the police are in a good mood and there is a sober, licensed driver nearby, they might let the other driver take the car home or park it. The police will not park your car for you. One of the advantages of being polite to the police is that they will be more likely to let someone park your car or drive it home for you.

If your car is legally parked or if there is a sober driver present who can take the car home and the police impound the car anyway, it may be because they wanted to search the car. If the police legitimately impound a vehicle they are allowed to do a limited search of the vehicle and can use what they find in the car against you. If the police impounded your car even though it was legally parked or there was a person to drive it away, tell your attorney because your rights may have been violated by the police in order to search your car.

Can They Search My Car? Can They Search Me?

The police can search anyone anywhere at anytime—if they are given legitimate permission. Consequently, police usually ask to search whether they have the right to search you or not. If you allow them to search, it does not matter whether the search was justified. Never agree to be searched!

Some drivers give up their right not to be searched because they believe that the police are going to search them anyway. That is not always true. However, even if the police do search you, there is always a chance that any evidence they find may be thrown out if you did not consent. Never give up your right to not be searched. If you are ever asked to be searched, tell the police clearly that you do not give them your consent.

If the police used intimidation to get your consent to search, or if you felt you did not have a choice, tell your attorney immediately. Any evidence found through aggressive tactics may be excluded from court even if you allowed the police to search.

Do You Have to Take a PBT-Breathalyzer Test?

In the Commonwealth of Virginia, you do not have to submit to a Preliminary Breath Test (PBT). The PBT is a small handheld breathalyzer machine that is a little bigger than a TV remote control. It is carried by the police in the field and is administered on the roadside. By Virginia law, the police officer must inform you that you do not have to submit to a PBT and inform you that you have the right to see the results. Do not submit to a PBT.

Do You Have to Use the ETD Breathalyzer?

The law in Virginia requires you to submit to being tested by an Evidential Test Device (ETD) if you are arrested for DUI within three hours of driving on any public road. If you do not submit you will lose your right to drive for one year. However, refusal is not a criminal offense if you have never been convicted of DUI or refusal before.

ETDs are larger, more accurate breathalyzers that are used only at the police station. They are about the size of a shoebox and have a keyboard and printer attached.

Before blowing into an ETD, the officer administering the breath test must observe you for 20 minutes. The officer should also read you a notice that explains that the law requires you to submit to the breath test.

Refusal to submit to a breath test in Virginia will result in the suspension of driving privileges for one year without an opportunity for a restricted driver’s license. Being convicted of refusal to submit within ten years of being convicted of a DUI or a prior refusal to submit will result in a three-year suspension of one’s driver’s license, up to six months in jail, and up to $1,000 in fines.  If a person refuses to submit after two convictions of DUI or refusal (or a combination of the two) within the last ten years, he will lose his driving privileges for three years, face up to 12 months in jail, and be fined a maximum of $2,500.

Driving suspensions for DUI and refusal to submit will run back-to-back. A person who is convicted of his first DUI and first refusal to submit at the same time will lose his driving privileges for two years (one year for DUI and one year for refusal). A person with a prior DUI who is convicted of a second DUI and first refusal to submit will have his license suspended for six years (three for the second DUI and three for refusal to submit). Drivers convicted of refusal to submit cannot get a restricted license during the suspension period.

Do You Have to Give Blood?

If a driver is arrested for DUI and is suspected of being under the influence of drugs, or if he is physically incapable of giving a breath sample (because, for example, he has passed out or is in the hospital), the police may choose to take a blood sample in addition to or as a substitute for a breath test.

A driver who has been arrested for DUI in Virginia has to submit to a blood test just as he must for a breath test. However, a driver must only submit if he has been arrested. If the police place you under arrest for DUI, only then must you allow them to take your blood.  Whether a driver is under arrest is not always clear, especially when a driver is in the hospital and is not placed in handcuffs or taken away. If in doubt, ask the police officer bluntly and clearly if you are under arrest. If you are not under arrest, you do not have to give them a blood sample.

The police do not have to offer the blood test as a substitute for the breath test. A driver can request a blood test, but the police do not have to give one. The police often do not want to wait for the results of the blood test, which take longer.

Do They Have to Show Me the Results of a Breath Test?

In Virginia, police officers must allow you to see the digital results of any breath test and must also offer you a copy of the printout (if one exists). This rule applies to all breathalyzer machines, ETDs and PBTs.  Additionally, the police officer administering the test must inform you of these rights before beginning the test if they want to use it as evidence in your DUI trial.

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