This is one tough question to be sure. First off, let’s talk about what the cop is really after. We have all seen or heard the Anti-DWI (MADD/NHTSA) message about “Drink, Drive, Go To Jail”. I have to tell you that most of the people that show up for jury duty think that this is the law. I will almost always have 75-80% of the jury panel raise their hands when I say “raise your hand if you agree that the law says ‘drink, drive, go to _______”. And I let them fill in the blank and you ought to see them yell out “JAIL” with a smile on their faces.The point I’m trying to make: there is a reason why the cop wants you to admit you’ve been drinking. It can be taken as an admission that you are DWI since it means you go to jail. The next thing I do with the panel is pick out one of the people that didn’t raise their hand or shout out. I ask that person why they didn’t join in with the others and usually they say something like “because that isn’t the law”. As long as they are close to that answer it is a good thing. I will then explain to the panel that they were all wrong and the few members that knew the truth were correct in their refusing to raise their hands. I like to ask them how they like being lied to by the ad campaigns.
At this point I like to discuss the DWI propaganda that the government is putting out and how it effects them. I also mention that as a former police officer I know how that propaganda can effect the decision making of the police officers too. In San Antonio and Austin, both Chiefs of Police have publicly stated that if you drink and drive you are going to jail. How do you think that influences a police officers opinion about whether to arrest you or not?I bring up the question: why would someone lie to the police about whether or not they were drinking? (I ask that because the police reports list lying as a clue of intoxication) Then I start talking about how when I was a kid my Daddy used to whip me with a belt when I broke the rules of our home and tell a few stories about my “whuppins”. That usually gets them laughing or shocked if they weren’t from my generation. But I always bring in when Dad would ask me a question and I knew if I said yes, I was getting “whupped” again. So I admit to them that I would lie since the “whuppin” wouldn’t be any worse than if I told the truth.I then ask the jury panel, “so if you are so convinced that drink, drive, go to jail is the law don’t you think a lot of people getting pulled over think that way too?” Then I go whichever way the video or police report describes the answer the driver gave when asked. If the driver says “no, I haven’t had anything to drink” I have set up why the driver did so. He was scared of getting “whupped” (arrested) by the police officer. You see, if he says yes I was drinking and then got caught driving he knows he will go to jail. I ask “which one of you wants to go to jail, even if you aren’t drunk?”
If the answer given was “yes, I had a couple” the police officer never believes you. I love to ask the panel “what if you had two beers and the officer asks how many drinks you had?” They start laughing because the old adage is “everyone just had two” when you talk to the officers. So I ask “what if you only had one, or three, or four?” I can state with a lot of confidence that if you tell a police officer you had four drinks and then drove the handcuffs are already getting warmed up.
I let the panel discuss all these issues with me and with each other by looping their comments and they start to understand the difficulty of this simple (?) question asked by an officer during a traffic stop. So are you still waiting on my answer? Good.
Before I go any further let me say that if you have been drinking and are going to drive a vehicle then you need to expect to be pulled over and questioned by the cops. If you feel that you are in great shape to handle that then drive on but have my office number in your cell phone just in case.
Now, what should you say to the officer when he stops you and he smells the odor of an alcoholic beverage on your breath. Now remember when I wrote earlier that the cops consider lying as a clue of intoxication? They also consider the odor of an alcoholic beverage on your breath a clue of intoxication. It seems that you are damned if you do and damned if you don’t. So how do I cover this issue?
I talk about my cows and how one of the biggest activities in a cow’s life is making cow patties. And I ask the panel to imagine if I had stepped in a fresh cow patty on the way to court to speak to them. I ask that they imagine that they can smell the odor of the cow patty on my boots (I always wear boots). Then I ask one of the panel members “was the cow a bull or a momma cow?” They don’t know the answer so I ask another member “what did the cow eat before it made the patty?” and they don’t know. I ask another one “what color was the cow?” and they don’t know. Then I morph this line into and we can’t tell how much someone drank by the odor can we, or when they started drinking, or what brand they were drinking, or how it affected them by the odor alone, can we?” And they will all agree that is the truth.
What makes this fun is that usually when the police officer is testifying and the prosecutor asks about the odor the selected jury members all start smiling when they hear the word odor. I know this is because they are thinking about cow patties and it is not uncommon for them to look at me and smile. So again you are wondering when I am going to answer the question asked to start this writing.
I recommend this advise to a non-commercial driver. Ask the officer if you are a suspect in a criminal investigation or just say “why do you want to know that?” He might say he needs to make sure you are safe to drive. Now if you just ran six cars off the road and ran through a guardrail you should probably not answer his questions. But an interesting case came out recently that you need to know about.
In Texas v. Salinas, the United States Supreme Court ruled that silence could be introduced as evidence of guilt because Mr. Salinas was answering police questions voluntarily but then stopped when they asked him about a specific crime. The Court wrote that if Mr. Salinas had verbally responded to the officers (said out loud) that he was invoking his 5th Amendment Right to remain silent then it could not have been used against him. In other words the idea that a person was talking with police freely but then “remained silent” when questioned about a crime is evidence that the person was guilty of that crime. Now that messes stuff up for us with the DWI cops.
So if you get pulled over and start shooting the sh…, er, breeze with the police officer and then all of a sudden you don’t answer him when he asked you “are you intoxicated” maybe they can use that against you in court as evidence of guilt. I don’t like that option so here is what I decided I should advise non-commercial drivers to do when asked “have you been drinking?” (you never thought I would actually get to it, did you?)
To avoid the Salinas problem you need to decide to go one of two directions with your actions. Plan A would be to tell the officer that you don’t feel comfortable answering questions about a criminal matter without the advise of your attorney. Tell him you have our phone number saved on your phone and you would like to call my office right now for advise. (Austin 512-278-0935 and San Antonio 210-394-3833) I am pretty certain that the officer will not let you call my office which is answered (24/7/365) all the time and calls forwarded to one of our attorneys.
If he/she lets you call us then by all means do so and let us base our advise on the situation at hand. If he/she doesn’t let you call my office then tell them about Plan B. Plan B means that you are invoking your 5th Amendment Right to remain silent and invoke your 6th Amendment Right to have your attorney present during any questioning. I know this seems pretty extreme but we are going from the perspective that you have been drinking, you can’t pass the field sobriety tests (see that section of our website) and that you are not going to give a breath sample or blood sample voluntarily. (see No Refusal Blood Warrants for more information on that issue).
This will leave the officer with the following evidence to use against you in court if you get arrested. Some legitimate traffic offense (not all traffic violations are evidence of a “drunk car or truck”), the odor of alcohol on your breath, red or bloodshot eyes, slurred speech and the fact that you didn’t take the sobriety tests or give a breath of blood sample. This is enough to get you arrested in Texas and across America for DWI.
Plan C (yes there has to be the option to really mess stuff up and not take my advise) is to cooperate with the officer and maybe, just maybe you will be released and allowed to go home if you are really lucky. Of course on the other hand, if you keep talking (digging your own grave), fail the agility tests (to be shown to the jury at trial on video) and give a bad sample (do you know what it takes you to get to 0.08) then you may have just cooked your own goose.
But that when Plan D comes into play and it is the best plan of all. Plan D stands for “Plan to call the Dude” to get you out of this mess. I can’t ever guarantee a victory (never trust a lawyer that does) at trial but we are certainly the best shot you have at surviving a DWI arrest.
Remember, don’t drive drunk, the less you say the better, don’t take a test unless you know the answer ahead of time and if you get “Busted?, Call the Dude!”