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If you are the driver of a motor vehicle, and you are stopped by law enforcement, remember----KEEP YOUR MOUTH SHUT! When you become aware of the fact that a law enforcement officer has activated the overhead lights in his/her patrol car, DON'T PANIC but slowly, safely and carefully, in a manner that is consistent with prudency and sobriety, turn on your red hazard lights' indicator in the cabin of your vehicle, and, in most cases, park your car on the right-side shoulder of the road or highway.
Put you car in the "park" position and shut off the engine. If your headlights are on don't shut them off. Most likely, the law enforcement officer will drive his car directly behind your car on the shoulder of the road. The law enforcement officer will get out of his/her patrol car and approach the window area on the driver's side of your car. DON'T SAY ANYTHING IN RESPONSE TO ANY QUESTIONS POSED BY LAW ENFORCEMENT. Inform the officer that you have been advised by your attorney not to answer any questions asked of you. Carefully, locate and secure your driver's license, vehicle registration and proof of insurance card. Be prepared to provide these three (3) items to law enforcement.
The law enforcement officer will return to his/her patrol car. There, s/he will check the status of your driver's license to determine whether your license is suspended or restricted. Assuming your "class ‘D'" driving privileges are valid, the law enforcement officer will also try to determine whether there are any warrants outstanding for your arrest. When the law enforcement officer returns to the driver's side window of your automobile, try to make sure that he returns to you, at least, your vehicle registration and proof of insurance card. Should law enforcement ask you "where are you coming from?" politely and respectfully, inform the officer again that you have an attorney and that your attorney has advised you that should you ever have an on-the-road interaction with the police, you have been advised to
"SAY NOTHING!" Keep in mind though that questions such as your name, address, date of birth and social security numbers are "PEDIGREE QUESTIONS" and should be answered by you calmly and succinctly. "DON'T VOLUNTEER ANY INFORMATION!" YOU HAVE THE RIGHT TO REMAIN SILENT AND YOU SHOULD TAKE REFUGE BEHIND THAT FACT. Should the officer request that you exit your car, do so but realize that after prolonged driving your gait may be a bit unsteady, so try to be aware of the fact that the manner in which you exit your automobile will be carefully scrutinized by law enforcement. AGAIN, IF THE OFFICER ASKS YOU WHETHER YOU HAVE CONSUMED ANY ALCOHOLIC BEVERAGES, KEEP QUIET AND AGAIN POITELY AND RESPECTFULLY INFORM THE OFFICER THAT YOUR ATTORNEY HAS ADVISED YOU NOT TO ANSWER ANY QUESTIONS, OTHER THAN PEDIGREE QUESTIONS, IF QUESTIONED BY THE POLICE!
Should the law enforcement officer require you to perform any type of field sobriety or agility tests, REFUSE POLITELY? Should the officer try to get you to cooperate with him or her, saying things such as if you don't perform the field sobriety or agility tests, s/he will arrest you for "driving while intoxicated (‘DWI')" which in most cases is a misdemeanor crime, and is, in some cases, a felony; DON'T PANIC! Being arrested in my view, provided you follow the rules which I have laid out in this article, should help you greatly if you are indeed arrested. Almost all normal people, be they under the influence of alcohol or not, should only cooperate with the police by providing them with PEDIGREE information. If arrested you will be brought to a police precinct. Finally, if you are asked to blow into a small hand held machine, known as an Alcho-Sensor test, DON'T SUBMIT TO THAT TYPE OF BREATH TEST; rather, politely and respectfully refuse. Pepper your statements to law enforcement with words such as "yes sir" or "no mam." Be aware of the fact that an on-the-scene Alcho-Sensor test result is inadmissible in a court of law in New York State.
After you arrive at the police precinct, KEEP QUIET! If you need to use the bathroom at the police precinct, make sure that you clearly inform the police officer of this and you will be allowed to use the restroom. If you have been arrested for driving while intoxicated, law enforcement will make most likely two (2) attempts to get you to submit a chemical sample of your blood, breath, urine or saliva. If you refuse to submit to a breath test which is considered by law enforcement to be the most reliable and expeditious way of testing to determine what your blood alcohol concentration is, you, and only you, can submit or refuse to provide the breath sample, but keep in mind that if you refuse to submit a chemical sample of your blood, breath, urine or saliva, you will be advised at your arraignment that you have the right to have a chemical test refusal hearing before an Administrative Law Judge ("ALJ"). Your arraignment will be the first time when you appear before a Judge, to be formally charged with committing DWI, which is a crime. Moreover,
at that time, you will be advised that in most cases you will be given a date, time and place, which is typically, at most, fifteen (15) days after your arrest, that you are
scheduled to have a chemical test refusal hearing in Suffolk County, most likely, in Hauppauge. Should the ALJ, who is a salaried employee of the New York State Department of Motor Vehicles find by "substantial evidence" that you had indeed refused to submit a chemical sample of your breath, your license will be revoked for, in most cases, one (1) year.
Finally, contact an experienced DWI attorney who should attend the chemical test refusal hearing with you so that your lawyer will be afforded the opportunity to cross examine the arresting law enforcement officer. Quite frankly, the chances of your being found to "not" have refused to submit a chemical sample of your breath, is highly unlikely, at best. Regardless, you should seriously consider appealing the ALJ's decision because, at the very least, in your appellate documents you should ASK FOR A "STAY" OF THE REVOCATION OF YOUR DRIVER"S LICENSE. In almost all appeals to the Appeals Board of the Department of Motor Vehicles in Albany, your revocation will be stayed or postponed until your appeal is decided by the Appeals Board which should take months. When choosing an attorney to represent you, and because you are being charged with a crime, you must retain an attorney, BE CAREFUL. In this author's opinion, DWI defense is a very specialized area of the law, and you should only retain someone who has tried DWI cases, who tries DWI cases, and, if possible, limits his/her practice to DWI defense. Be prepared to pay thousands of dollars in legal fees, but, keep in mind the fact that you have been charged with a crime, that you are presumed innocent, that you have the right to a jury trial and the prosecution has the burden of proving each and every element of the crime beyond a reasonable doubt.
Note well that having been arrested does not mean anything except that your precious liberty, which we all enjoy in America, shall be interrupted for a brief period of time and when you first appear before a Judge in any court in the State of New York, the Court must set a reasonable bail or release you on your own recognizance. AGAIN, KEEP YOUR MOUTH SHUT, EXCEPT WHEN ASKED PEDIGREE QUESTIONS. "WHERE YOU ARE COMING FROM" AND "WHETHER YOU HAVE CONSUMED ALCOHOLIC BEVERAGES" ARE NOT PEDIGREE QUESTIONS, and MUST NOT BE ANSWERED BY YOU!
The author of this article is Southampton, Suffolk County defense attorney Fred Fisher, who has been licensed to practice law in New York State for more than 27 years. Furthermore, Mr. Fisher is one (1) of two (2) attorneys in Suffolk County who are members of the National College for DUI Defense, and he is the only attorney in Suffolk County who limits his practice to DWI defense and traffic related matters.