What should I do if a police officer asks me to take a breathalyzer?
For many years attorneys have been telling people never to submit to a
breath test. Unfortunately, such advice tends to be based on an outdated
understanding of the law and ignores recent developments in both
Massachusetts and New Hampshire related, in particular, to
administrative license suspensions for refusal to submit to a breath test.
Keep in mind that there are now two main types of breath testing. The first
is roadside testing with a portable machine. You have a right to refuse
such a test. For refusing this type of test there is no license suspension. The second, more common type of test occurs at the police department following arrest. Both Massachusetts and New Hampshire have what are generally referred to as "implied consent" laws. Under these laws, a person who has been arrested may refuse a post-arrest test. However, such a refusal will result in a minimum license suspension of 180 days in both Massachusetts and New Hampshire. Such suspensions may be significantly longer, depending on an individual's prior history. In Massachusetts, a refusal to take a post-arrest breath test is not admissible in trial. However, in New Hampshire such evidence may be considered against you. Of course, if you do take a test, and the result is above the legal limit, you will be charged with operating under the influence. In some cases individuals can be, and have been, charged even when the test result is simply close to, even though under, .08.
Unfortunately, there is no simple "one size fits all" answer. Whether you should take a breath test depends on your personal circumstances, including your prior history, and an honest self-assessment of your level of impairment. If you have had very little or no alcohol, submitting to and passing a breath test may actually result in you not being charged -- and will avoid a license suspension for refusing a test. Under such circumstances, taking a test may present a reasonable option. However, if you are feeling the effects of alcohol, even slightly, you should think long and hard before submitting to a test and should remember that your attorney will usually have a much better opportunity to obtain a favorable result for you in court if you refuse the test.
The police would like to speak with me about a crime. What
Contact an attorney. Even if the police tell you that you are not a
suspect, that information may not be true. The law gives police
officers wide latitude to lie to citizens to obtain statements and
even confessions. The police are trained in the use
psychological tactics to get you to say what they want to hear in order to use it against you later. Recent surveys of convictions overturned on appeal by new DNA evidence reveal that more than 20% of these cases involved "confessions." In other words, in those cases, the police were able to get people to admit to crimes that they did not commit! We know that these convictions were false because in each case a judge agreed that on the basis of incontrovertible DNA evidence the person who confessed and, in many cases, spent years in prison did not commit the crime.
You have an absolute right to refuse to speak with a police officer. If a police officer asks to speak with you, you have the right to tell the officer that you do not wish to speak with him or her and that you would like to consult with an attorney. A police officer is required to respect these rights and must cease any questioning immediately. Asserting your right to remain silent and your right to an attorney may not be used against you later at a trial.
An attorney can speak with you confidentially. Your conversations with that attorney are "privileged", meaning that your attorney cannot tell anyone what you have told him or her without your permission. The attorney can then make an assessment to determine whether or not you appear to be a suspect. Following that determination, the attorney can assist you with a strategy to fit your needs. That strategy may involve attempting to secure an immunity arrangement (a legally binding agreement that your statements may not be used against you) or it may be to contact the police to tell them that you do not wish to speak, essentially acting as a buffer to protect you from them.
I was recently arrested. I'm guilty. So I think I should just
plead guilty without hiring an attorney. Is that a good idea?
No. It is almost never advisable to act as your own attorney and
to enter a guilty plea without consulting with a lawyer. If you are
charged with a crime you should enter a not guilty plea and consult
an attorney immediately. A lawyer can advise you of all of the consequences of a guilty plea (many of which you may not have been aware of), knows whether a plea bargain proposal offered by the government is reasonable in light of the circumstances, and can negotiate effectively on your behalf to obtain a fair result.
If the police ask me for permission to search my home, my person, or my car, what should I do?
You have the right to refuse a search, but not to physically resist. Police officers may legally conduct searches, even without consent and without a warrant, for a variety of reasons. However, when they do so, they may later have to provide justification for the search in court. A judge will then decide whether the search was reasonable and whether the evidence obtained will be allowed to be presented by the government at trial. If you consent to a search, you will have eliminated nearly all defenses related to the legality of the search. Never physically resist an officer who is trying to arrest you, and never interfere with a search, even if you believe it is illegal!
Under what circumstances may a police officer stop me while I'm
A police officer must have a reasonable suspicion that you have
committed, or are in the process of committing, a criminal offense or motor
vehicle infraction. There are countless reasons allowing a law enforcement
officer to justify detaining a motorist, including the following:
- Weaving or crossing over lane markings, even slightly
- Following too closely
- Speeding
- Driving too slowly
- Failing to maintain a steady speed
- Erratic driving
- Failure to signal a lane change
- Failing to come to a complete stop at a stop sign
- Failing to stop for a traffic light
- Illegal turn
- Driving at night without headlights on
- Expired registration or overdue inspection
- Faulty equipment, such as a burned out headlight or taillight or even a burned out license plate light
...and many, many more. In other words, an officer may pull you over for nearly any reason at practically any time, even though, as we've all seen, police officers frequently break many of these same rules themselves in non-emergency situations.
The information contained on this page is intended as a general guide and is not intended as legal advice relative to any specific case. The provision of this information should not be construed to establish an attorney-client relationship.
