Q. Someone I know has been arrested; what should we do?

A. There are normally two things to consider in the crucial moments which follow an arrest. The first is securing the person’s release from jail as soon as possible. There are a variety of ways this may be accomplished. Which particular procedure is best depends on the facts of each case. The second concern is to preserve and develop the arrested person’s ability to defend against the accusations. It is best for the accused to refrain from making statements to anyone concerning the case until he or she has been fully able to consult with an attorney. If you would like our assistance, feel free to contact us.

Q. I have not been arrested, but I have been accused of a crime or I have reason to believe that I will be investigated. What should I do?

A. Use caution. Unless you are certain that the accusation is only a minor one and will not result in criminal charges, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. You should consult with an attorney before making any statements. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said. Therefore, it is best to consult with an attorney prior to making any statements in order to ensure that your rights are protected.

Q. What should I do if I am stopped and arrested for DWI?

A. There is no uniform answer as to what is best, because every situation is different. Obviously, it is helpful to remain polite and courteous with the arresting officer, but this does not necessarily mean you should submit to all of his or her requests. You will be better able to deal with such an encounter if you know what to expect, what rights and choices you will have, and understand the potential consequences of your decisions. The following outline tells you what to expect in a typical case:

INTERROGATION

If an officer suspects you of driving while intoxicated, he will question you on the roadside about your recent alcohol consumption, what food you ate, where you were, and where you were going. Expect the officer to audio/videotape the entire encounter. Most police cars are equipped with video cameras that are mounted in the front interior of the vehicle. The cameras can swivel to film what occurs in front of and to the side of the car. If you are arrested, the officer will likely position the camera to record you as you are transported to jail. Most officers are equipped with remote microphones that can record your entire conversation from the initial roadside encounter to their parting words with you inside of the jail. Be mindful of this and guarded in your statements.

Though you must answer questions pertaining to your name, age and identification, you may refuse to answer any other questions. If you believe that you can present evidence favorable to your case by complying with the officer’s requests, you should do so. If you have any doubts though, you should request to speak with an attorney before answering any questions. This request should be made clearly and unequivocally, but politely. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first and refuse to answer questions except for those pertaining to your identity.

FIELD SOBRIETY TESTS

In most DWI investigations, the officer will ask you to perform a series of sobriety tests. You may refuse to perform field sobriety tests. The officer may request that you perform sobriety tests and submit to a breath test. You have the right to refuse these tests, though that refusal may later be used as evidence of your guilt.

You do not have the right to refuse to be videotaped, but you may refuse to perform the sobriety tests. If you believe that you can preserve evidence favorable to your case by complying with the officer’s requests, you should do so. You should be cautious though and if you have any doubts, you should request to speak with an attorney before submitting to the tests. If proper procedure is followed, the arresting officer will terminate the interview whenever you request to speak with an attorney. If the officer fails to do so, continue to request permission to speak with an attorney first.

ARREST & TRANSPORT

If the law enforcement officer has reason to believe that you are guilty of an offense, he or she can arrest you. Typically, you will be handcuffed and transported to a jail. Remember that you are probably being recorded as you ride to jail. At this point it is unlikely that anything you say will change that; however, how you handle yourself may make the difference between being convicted or acquitted. It is always best to remain polite and respectful. Though you should cooperate with the arrest process, limit what you say and do not allow an officer to pressure you into admitting guilt.

BREATH & BLOOD TESTING

At the jail, you will probably be asked to submit to a breath or blood test. Unless a life-threatening injury has resulted from a collision, you may refuse to submit to breath or blood testing. The reliability of the instruments used to measure breath specimens to determine body alcohol concentration is doubtful. While state-paid experts routinely testify that the Intoxlizer 5000 is accurate and reliable, several independent experts have expressed contrary opinions. Consequently, the results may be inaccurately high or inaccurately low. If you have any doubts about your ability to pass the test, do not submit to it before you consult with an attorney.

If you submit to a breath test and pass it, you stand a much better chance of winning your case. Sometimes, in fact, charges are not filed at all. If you submit to a breath test and fail it, you can later challenge the accuracy of the device at trial. However, you should realize that a trial in which a breath test is challenged tends to be much more expensive than one which does not involve a breath test because it is often necessary to hire private scientific experts to assist at trial.

Q. Is it better to accept a plea bargain or go to trial?

A. Most cases in which criminal charges are filed can be resolved through skillful negotiation and without the necessity of trial. Negotiations can result in a wide variety of outcomes, ranging from a dismissal of charges to a plea bargain agreement involving incarceration. Of course, the choice of whether to accept a "plea bargain" must be made by the accused and should be made only after investigating the facts of the case and studying the available alternatives as well as the terms of the plea bargain offer. Though most cases are resolved without trial, sometimes trial presents a more attractive option. Therefore, it is important to keep the trial option open and to be represented by an attorney who is both willing and able to represent you at trial.