Right to Refuse

I’m just going to go out on a limb here and tell you what I tell each and every client who gets pulled over under suspicion of driving while intoxicated: never agree to submit to any field sobriety tests.

Though you don’t necessarily want to go out and pretend to be a woodland creature (though, if spotted owl was the defense, I might attempt to argue that my client was protected from prosecution by the Endangered Species Act of 1973).

Essentially, every interaction you have with police is an opportunity for the state or federal government to build a case against you for violation of a law.

I recommend every client exercise every right available under the U.S. Constitution, specifically: No person… shall be compelled in any criminal case to be a witness against himself…

Every time you answer an officer’s questions, take a field sobriety test, submit to a breathalyzer, you are being a witness against yourself. That link to the video above gives a great crash-course.

What I tell each of my clients to do is to (1) be polite, but (2) decline to answer any questions and/or perform any tests, if there is even a snowball’s chance that they might test poorly.

Now, if my clients follow my advice, let’s be honest, they will be arrested. But they won’t have incriminated themselves, and won’t have to come to me with a sad story about how they failed this or that test they performed. And won’t give prosecutors (and possibly the jury) a good laugh at their expense when the video gets played in court.

And none of them are as funny in the long run as this one.