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Believing You Have Constitutional Rights in a DUI Case Can be Dangerous

Believing You Have Constitutional Rights in a DUI Case Can be Dangerous

Information courtesy of Lawrence Taylor - DUIblog

Youve 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 hes asking if youll take a breath or 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 dont have to incriminate myself. Somethings 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, he said I have a right to counsel: Id 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: "officer-induced confusion". Three apparently contradictory things are communicated to the (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. What would the normal person conclude?

Attorney Kathleen Carey

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Ms. Carey offers a free initial case evaluation, and will go over the facts of your case, your history, your rights and options.