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Gerald J. Monahan, Esq.

Attorney at Law
Association of Professional Mediators


"The law will never make men free, it is men that have to make the law free."

-Henry David Thoreau

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Monday, January 14, 2008

Know Your Rights: DWI

                                 KNOW YOUR RIGHTS



                                     By Gerald J. Monahan, Esq.


            It’s 11:30 P. M. and soon you will be home for a good night’s sleep that will come easy. Not only has your work day been particularly draining, you decided to cap it off with a few stiff ones at your favorite bar.

            Just up ahead you see flashing red lights and hope that the accident is not serious. As you get closer, however, your body stiffens when you realize it is not an accident, but a DWI road check. A police officer approaches your driver’s side and  politely orders you to produce your license etc. As he leans in close to you, the officer notices a “strong odor of alcohol” on your breath. He orders you out of your car and directs that you perform field sobriety tests such as finger to nose, walking a straight line, counting backwards, etc. You do pretty well. You do not stagger, slur or fumble. You are polite and responsive. In short you are probably not drunk but..........you can’t be sure. Nevertheless, the police officer thinks you are drunk, places you under arrest for DWI. The next stop is the police station where you find yourself face to face with something called a breathalyzer. This is a sophisticated machine that accurately measures the amount of alcohol in your blood. Do you take this test or not? What happens if you do; what happens if you don’t? As these questions scream in your tired brain you wish for the first time in your life that a lawyer was sitting beside you. Let’s say your wish were granted. This is what the lawyer tells you:  If you refuse to blow into the machine, (and you have never been convicted of DWI), you automatically lose your license for six months------- even if you are not legally intoxicated. If, however, you take the test and flunk it (ie. score  10 or better) you will be convicted of DWI and lose your license for six months [unless the machine is defective or has not been properly tested]. It gets worse. If you refuse the test, you lose your license for six months and can still be convicted of DWI based upon your behavior at the scene. If so, your license will be suspended for six more additional months plus fines, penalties and surcharges.

What to do?  Here is my answer: If your body tells you that you are not drunk, take the test. If you score below .10 and you have passed the field sobriety tests, you either will not be charged with DWI or will have an excellent chance of being not found guilty in municipal court. On the other hand, if you suspect you are drunk and have done poorly in the field sobriety tests, take the test, flunk it and leave court with only a six months license revocation. There is a third possibility. You can refuse the test and then be found not guilty of DWI in court. Although you will lose your license for six months for failure to take the test, you will not have a conviction for DWI. If you have to lose your license for six months it is better if it is for failure to take the test rather than for DWI. You should choose this option if and only if you suspect you are drunk but nevertheless have managed to do well in the field sobriety tests. In this case your lawyer can plausibly argue that your performance shows you are not legally intoxicated.

            As you can see, none of your options are great. It is the law’s way of telling us not to drink when we drive.

1:44 pm est 

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