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#1
11-20-2005, 03:00 PM
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Re: If not \"Two Beers, Officer\", then what?
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[ QUOTE ] Last time I played golf I played with a lawyer and talked to him about this. His recommendation is to say that you need to talk to your attorney if he has any questions. This requires the police to shut off there video camera so the police will have basically zero evidence on you. I don't know if this is for all states or just Texas. But if you do this you probably will end of having to go to court and spend a couple grand. If I was drinking but wasn't drunk I would just lie and say I hadn't had anything to drink and take a chance that they wouldn't give me a sobriety test. If they chose to test me I may or may not take it. Then if I got arrested I would refuse the breathalizer and all further testing from that point. [/ QUOTE ] I'm not a lawyer, but I'm pretty sure that sying you won't answer questions until you talk to your attorney will work anywhere in th U.S. as this is based on the fifth ammendment and the Miranda ruling. What you have to balance is your chance of keeping the cop from arresting you in the first place against your ability to defend yourself if you do get arrested. Refusing to answer is your legal right, but if you do so, most cops are going to assume you're guilty. OTOH, any admission that you've been drinking, or violated any other law, will be used agaist you if your case goes to trial. [/ QUOTE ] I asked the wife (who is a lawyer who has both prosecuted and defended people for DUI). She said that during the "investigation" phase this likely would not work. Once arrested, you have rights under Miranda. So your refusal to talk would likely result in arrest. Your refusal to do the breath test is generally an AUTOMATIC 1 year suspension, whether you are eventually found guilty or not. It is, of course, possible that your refusal may prevent them from gathering enough evidence to prosecute, but again, it's easier to avoid the whole mess. 
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#2
11-20-2005, 03:18 PM
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Re: If not \"Two Beers, Officer\", then what?
[ QUOTE ]
I asked the wife (who is a lawyer who has both prosecuted and defended people for DUI). She said that during the "investigation" phase this likely would not work. Once arrested, you have rights under Miranda. So your refusal to talk would likely result in arrest. Your refusal to do the breath test is generally an AUTOMATIC 1 year suspension, whether you are eventually found guilty or not. It is, of course, possible that your refusal may prevent them from gathering enough evidence to prosecute, but again, it's easier to avoid the whole mess. [/ QUOTE ] I think there may be some miscommunication because you definitely cannot be arrested for refusing to answer a question (Excluding stuff like your name and the information on your license) because that would be a 5th Amendment violation. The difference between the situation before you are arrested and after you are arrested is that the cops must read you your Miranda rights after you are arrested. But the 5th Amendment nevertheless still applies before you are arrested. That being said, it might not be a good idea to not answer the cops questions because it may antagonize him and cause him to do a field sobriety test.
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#3
11-20-2005, 03:19 PM
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Re: If not \"Two Beers, Officer\", then what?
Yes, however you can be detained for 72 hours without being arrested. I don't recommend refusing questions before you are arrested.
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#4
11-20-2005, 03:27 PM
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Re: If not \"Two Beers, Officer\", then what?
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Yes, however you can be detained for 72 hours without being arrested. I don't recommend refusing questions before you are arrested. [/ QUOTE ] Whether you call it an arrest or not, detaining someone for 72 hours requires probable cause that you committed a crime. You can be detained if you refuse to identify yourself (if your state makes that an arrestable offencse), but you cannot be detained for merely refusing to answer questions about how many beers you had.
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#5
11-20-2005, 03:29 PM
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Re: If not \"Two Beers, Officer\", then what?
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[ QUOTE ] Yes, however you can be detained for 72 hours without being arrested. I don't recommend refusing questions before you are arrested. [/ QUOTE ] Whether you call it an arrest or not, detaining someone for 72 hours requires probable cause that you committed a crime. You can be detained if you refuse to identify yourself (if your state makes that an arrestable offencse), but you cannot be detained for merely refusing to answer questions about how many beers you had. [/ QUOTE ] You can be detained for questioning on your mental capacity while driving. It's basically the same, ask an officer.
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#6
11-20-2005, 03:32 PM
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Re: If not \"Two Beers, Officer\", then what?
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[ QUOTE ] [ QUOTE ] Yes, however you can be detained for 72 hours without being arrested. I don't recommend refusing questions before you are arrested. [/ QUOTE ] Whether you call it an arrest or not, detaining someone for 72 hours requires probable cause that you committed a crime. You can be detained if you refuse to identify yourself (if your state makes that an arrestable offencse), but you cannot be detained for merely refusing to answer questions about how many beers you had. [/ QUOTE ] You can be detained for questioning on your mental capacity while driving. It's basically the same, ask an officer. [/ QUOTE ] Yes, that is correct. But they cannot force you to answer questions about what you did that night. They can ask you where you live, how old you are, etc.
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#7
11-20-2005, 03:35 PM
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Re: If not \"Two Beers, Officer\", then what?
No, but your comment was that you can't be detained for refusing to answer how many beers you had. And while technically this is correct, you can still be detained if you do this, just for a slightly different reason. In any event, I think we can agree that refusing to answer police questions before an arrest is stupid and will bring you problems FAR more often than it will ever get you out of them.
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#8
11-20-2005, 03:53 PM
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Re: If not \"Two Beers, Officer\", then what?
[ QUOTE ]
[ QUOTE ] I asked the wife (who is a lawyer who has both prosecuted and defended people for DUI). She said that during the "investigation" phase this likely would not work. Once arrested, you have rights under Miranda. So your refusal to talk would likely result in arrest. Your refusal to do the breath test is generally an AUTOMATIC 1 year suspension, whether you are eventually found guilty or not. It is, of course, possible that your refusal may prevent them from gathering enough evidence to prosecute, but again, it's easier to avoid the whole mess. [/ QUOTE ] I think there may be some miscommunication because you definitely cannot be arrested for refusing to answer a question (Excluding stuff like your name and the information on your license) because that would be a 5th Amendment violation. The difference between the situation before you are arrested and after you are arrested is that the cops must read you your Miranda rights after you are arrested. But the 5th Amendment nevertheless still applies before you are arrested. That being said, it might not be a good idea to not answer the cops questions because it may antagonize him and cause him to do a field sobriety test. [/ QUOTE ] No miscommunication, just poor writing on my part. You are correct in that you can't be arrested for refusing to answer questions, as the officer requires some reasonable cause to arrest you. It's just that all he has to do is claim he smelled alcohol and you appeared to be intoxicated, and he has cause. It is my opinion that refusal to answer questions would result in your arrest.
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