You’ve just been arrested for DUI. And, like in the movies, the officer reads you the "Miranda" rights: "You have the right to remain silent", he tells you, "You have the right to an attorney"

And then the very next thing he asks if if you’ll take a breath or a blood test.

Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those breathalyzers accurate? Would a blood test be better?

Well, you think, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide wheher to take a test or not, and which one I should take.

So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. "Are you refusing to take a test?" he asks darkly. "I just want to talk to my attorney," you reply. "Your funeral," the officer says.

Now what did he mean by that?

What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as "consciousness of guilt".

Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common — what is called "officer-induced confusion". Three apparently contradictory things are communicated to the (confused and very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you — without speaking with an attorney. What would the normal person conclude?

Well, let’s take a closer look at the laws involved here…

First, the so-called "implied consent" laws say that a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to "remain silent", or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known "DUI double standard").

As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, "You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two". (As we say, "the DUI exception to the Constitution".)

What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test. Most states, however, will not let you change your mind. As one appellate court bluntly put it, "One offer plus one rejection equals one refusal and one suspension". Dunlop v. DMV (156 Cal.App.3d 279).

Translation: tough luck all around. Granted it’s all very confusing, and the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.
 

I’ve posted in the past about how easy it is for a police officer to falsely arrest a driver for DUI and to fabricate evidence.  Some of these cops carry this to extremes.  These so-called "DUI SuperCops" receive awards from MADD, departmental promotions, and huge overtime paychecks for testifying in court.  See, for example, DUI SuperCops and SuperCops: The Smoking Gun.  And sometimes there are other reasons for the false arrests…

More Lawsuits Against Chicago DUI Cop Richard Fiorito 

Chicago, IL.  Nov. 13  –Chicago oolice officer Richard Fiorito is now facing 37 lawsuits alleging he intentionally targeted gay and lesbian drivers to issue false DUI arrests.

The lawsuits claim Fiorito was looking to capitalize on overtime pay issued to police officers when they appear in court to testify in a DUI case. Fiorito made 313 DUI arrests between January of 2007 and June of 2008; the officer was even honored by MADD for his efforts. Most of these arrests were against gay and lesbian suspects. He supposedly targeted these individuals when they left gay and lesbian bars or frequented gay and lesbian areas.

New dash cam evidence is pointing to the fact these arrest reports may have been exaggerated if not totally falsified…

Fiorito has been placed on desk duty since the charges were first issued in early October.  16 more plaintiffs recently joined the case with the original 21, leading the total to 37 lawsuits against the officer. All testimony from Fiorito in any of these pending DUI cases will be on hold until internal investigations from the Cook County State Attorney’s Office and Independent Police Review Authority are complete.

Fiorito is not the only Chicago officer accused of these types of arrests in the previous few years. Officer John Haleas was suspected to be guilty of perjury last year, having about 50 cases dismissed, but was exonerated of criminal charges.  [See my post No Surprise: Dirty DUI Cops Goes Free]

Framing gays for drunk driving is reprehensible. Hopefully, however, the public will also see the underlying message: it’s very easy for a cop to frame anyone for this cirme — for any reason.
 

The endless hypocrisy of MADD’s "War on Drunk Driving" continues…

Ohio Trooper of Year Charged With Drunk Driving

Lima, OH.  Nov. 10 -  A state trooper in northwest Ohio who was honored by Mothers Against Drunk Driving in 1997 for the number of drunken-driving arrests he made has been charged with drunken driving…

Gibson was off duty Sunday when Waynesfield police say he drifted over the center lane and then refused to take a Breathalyzer test. Waynesfield is 12 miles northwest of Lima.

Mothers Against Drunk Driving honored Gibson in 1997 for making the most drunken-driving arrests by a Lima trooper. He was named trooper of the year in 2002 in Lima.
 

I’ve posted in the past about so-called "DUI Super Cops", who get promotions, awards and lots of money by racking up huge numbers of drunk driving arrests — legitimate or not.  See, for example, DUI SuperCops and SuperCops…and SuperCons.  I’ve also written about some of them who’ve been caught.  See How To Be a "Top Cop", Another DUI "SuperCop" and SuperCops: The Smoking Gun,   One of the more recent was a Chicago cop, decorated by MADD and recently indicted for making false arrests with falsified evidence.  See The Latest DUI SuperCop.

Yesterday, that dirty cop got the kind of justice typical in the DUI field: He went free but the hundreds of innocent people he framed stand convicted.

Judge Drops Case Against Cop Honored for Hundreds of DUI Arrests

Police, prosecutors mishandled evidence, jurist says

Chicago, IL.  Nov. 5 –  The criminal case against Chicago’s most prolific officer on DUI arrests fell apart in court Wednesday when a Cook County judge ruled that police and prosecutors mishandled evidence…

Haleas made 718 arrests in 2005 and 2006 and was the primary witness in hundreds of DUI cases, garnering a "Top Cop" honor from the Alliance Against Intoxicated Motorists for having the most DUI arrests in the state…

Judge James Obbish dismissed the indictment against Officer John Haleas, siding with the defense that forbidden evidence from the Chicago Police Department’s internal probe had made its way into the criminal case.

Despite a former prosecutor’s testimony that he carefully excluded any information from a statement given by Haleas to department investigators, Obbish said he believed the statement had been improperly considered in the decision to press charges against the officer. Obbish said he based his decision on an internal affairs sergeant’s testimony that he briefed the prosecutor on the forbidden evidence.

A U.S. Supreme Court case prohibits statements by officers in administrative disciplinary proceedings from being used against them in criminal cases.

It was unclear why the internal affairs investigator would not have steered clear of bringing up the statement in his dealings with prosecutors.
 

Unclear?  I don’t think so….