August 18, 2020
I’m Attorney Mike Contant. A question I’m often asked is, “If I’m pulled over for drunk driving, do I have to take the field sobriety test?” The short answer is, “No.”
You’re Never Required To Take The Field Sobriety Test
In Massachusetts, you’re never required to take the field sobriety test. The police can’t make you do it. And nothing bad can happen to you if you refuse to take the field sobriety test. Unlike what’s the case with the breathalyzer test, you cannot lose your license for refusing to take the field sobriety test. Your license can’t be suspended if you tell the officer, “No. I don’t want to take that test.”
It also won’t be held against you when your case goes to court. The judge can’t hold it against you. And in the case of a jury trial, they’re not even allowed to tell the jury that you were ever offered these tests and then subsequently refused to take them. The reason for that is that it would be prejudicial to you.
If they told the jury that you were offered these tests and you could have theoretically exonerated yourself or proven your innocence by taking them, and you decided not to, it’s almost like you were saying, “You know, I think I might have had too much to drink that night.”
Not taking the tests can’t be used against you. The jury never gets to hear about them. Essentially, nothing bad can happen to you for not taking these tests.
Why You Should Say No
The reason you really don’t want to take the tests and you should always say no to them is the same reason you say no to the breathalyzer test. By saying no, you’re taking away evidence from the Commonwealth that they were going to use against you.
Next to the breathalyzer tests, field sobriety tests are the most powerful piece of evidence in most drunk driving cases that the Commonwealth, the government, can use against you to try and prove you’re guilty. The problem with these tests is that they’re not very scientific. They’re really just balancing tests that most people couldn’t do sober.
What Would Happen If You Took The Test?
Here’s what would happen: The police officer is going to get on the witness stand. He’s going to talk about his training and his experience and how these tests are what they call divided attention tests. They simulate driving because you have to do two things at once. You have to think about something and do something and balance and things like that.
But when was the last time you stood on one leg, stared at your foot, counted out loud while you were driving? These tests have no correlation to driving. All you’re doing is giving the police officer something to say about you, something more to try and convince a jury that you were drunk that night when he pulled you over.
Simply put, you’re never required to take a field sobriety test. Our advice is to always refuse them. Nothing bad can happen to you if you decide to refuse them.
If You Have Questions
If you have any questions about your rights when you get pulled over on the side of the road, whether you have to take the field sobriety test, whether you should, whether you have to take a breathalyzer test, whether you should, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.
August 18, 2020
I’m Attorney Mike Contant. A question that comes up from time to time is, “Can the police stop my car based solely on an anonymous tip?” And the short answer to that question is, “No.”
The Right Against Unreasonable Searches And Seizures
That’s because you have certain rights to privacy guaranteed by both the Massachusetts as well as the United States constitution. One of those rights is the right against unreasonable searches and seizures.
Whenever the police stops you, whether it’s on foot or in your car, that’s considered a seizure. In order to do so, they have to have a certain level of information. And that level of information requires what they call a reasonable suspicion that you either are committing, have committed or are about to commit a crime.
In the case of your car, they can also stop you if they see you commit a traffic violation like speeding or changing lanes without using your turn signal or running a stop sign. That’s some of the information they would need in order to stop you.
An Anonymous Tip Is Not Enough
An anonymous tip all by itself is not enough to raise that reasonable suspicion. That’s because anonymous tips are considered unreliable. Basically, anybody who is anonymous can make up a story about anyone else.
An anonymous person can call a police station and say, “Hey. I’m not giving my name. I’m not giving my phone number. I don’t want to be identified. I’m calling from a blocked number. I just saw a white male who I know. And he is in this car. It’s a green Ford Mustang. It’s got the plate number XYZ123. It’s traveling up Route 95 North. And it has drugs in the trunk.”
That story can be completely made up. And because the person is anonymous, there’s no way to check the validity of that story. If the police acts on that tip, stops that car and searches the car, anything they find, whether a gun or drugs or anything else, would not be admissible.
Here’s What The Police CAN Do
However, that doesn’t mean the police can’t do anything with that tip. It doesn’t mean they have to ignore it because it’s anonymous. The police can do something. They can go find the car.
And if the car happens to be in that particular location and meets that description, they could follow it and they could see if it does anything wrong, such as a traffic violation or something else. And if it does that or they see some other evidence of criminal activity, then they may have enough, along with the anonymous tip, in order to stop that car.
What If They Act ONLY Based On The Tip?
But if all they’re acting on is the anonymous tip, it’s simply not enough to stop that car. So if they stop that car and they search it, even if they ask the owner for permission to search it, the stop itself is illegal.
As a result, that permission is no good and anything they find in that car cannot be used against the person in court. We would file a motion with the judge to demonstrate that the only information they had was that anonymous tip. And if that’s the case, the court will not allow the police to use whatever evidence they found in that car.
So if you have any questions about your privacy rights within your vehicle, your home or anything else related to this, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.
August 18, 2020
I’m Attorney Mike Contant. A question I often get asked is, “Can the police search your car without permission?” It’s important to understand that there are circumstances where the police will be allowed to search your car even when you don’t consent. But they often won’t tell you what those situations are and you won’t know just by what’s going on.
Just Say No
So it’s very important if they ever ask for your consent or your permission to search your car that you just say no. That’s the first piece of advice I need to give you. If they say, “Hey, can we search your car?”, you politely decline and say, “No. I don’t want you to do that.”
When CAN They Search Your CarAnyway?
There are some ways that they will be able to search your car, even if you do say no. I’m going to go through a few of those right now.
They Have A Search Warrant
The first is if they actually have a search warrant to do it. That’s a piece of paper, usually. It’s granted by the court, typically by a judge or a court magistrate, after the police have gone to court, filled in some paperwork, including an affidavit setting forth enough facts to establish probable cause.
Essentially, a probable cause means that there are enough facts that the magistrate believes that there’s going to be evidence of a crime found in your vehicle. So they have to have a lot of information. It’s not just that they have a hunch or they think they might find something there. It’s very rare that the police are going to get a warrant to search your car, especially if you just get pulled over.
They Have Probable Cause
The second way they can get into your car and search your car is if they have probable cause. In other words, they have substantial information to believe that you’ve committed a crime and that evidence of that crime will be found in the car. They don’t always need a warrant as long as they can show later on to a judge that they had this probable cause, a substantial belief that you’ve committed crime and that evidence should be found in your car.
They’re Arresting You
Another way is if they’re arresting you for something. In other words, they’ve already established enough to arrest you for some offense. It could be any arrestable offense. You could be drunk driving. It could be related to drugs or guns or anything else. It doesn’t really matter what type of offense it is.
But if they had a valid reason to arrest you, they are allowed to search the passenger’s compartment of your car, any area that you could’ve put your hands on. They call it the lunge, reach or grasp rule, also called the wingspan test. And within that area, they’re allowed to search anything, including bags, jackets, or other things.
Fear For The Officer’s Safety
Another way that they may be able to search at least a portion of your car is if there is imminent fear for the officer’s safety. In other words, you get pulled over for something, maybe just a traffic offense, but something you do or say leads the officer to believe that he may be in danger.
You might be reaching for something. It might be that you look like you’re hiding something. Or he recognizes you and somehow he knows you have a bad record and you have weapons or things like that. Under those circumstances, they may ask you to step out of the car. And in so doing, they may pat or frisk you to see if you have any weapons on you.
And even if they don’t arrest you, they are allowed to go into the passenger compartment of your car, the area where you could lunge, reach or grasp and check it to see if there are any weapons. That’s another way they may be able to search your car.
Theoretically, they’re only supposed to be looking for weapons there. But if they find something else like drugs or some other type of contraband, they are allowed to use it because of that particular reason why they had you out of the car.
If They’re Going To Tow It
Another occasion when the police may be able to search your car without your permission is if they’re going to tow it. A typical example of this might be that you were in an accident and your car is not driveable so they have to tow it from the scene. Or if you’re being arrested for something else, like drunk driving or whatever, and there’s no one to drive your car home.
Your car could also be broken down for some reason and they would have to call a tow truck to take your car away. In those cases, they may also search your car, even though it’s not supposed to be a search for evidence but simply what they call an inventory search. That’s just a search where they go through the car to make sure they’re safeguarding any belongings and listing out everything that’s in the car.
And that’s actually meant to protect the police from claims by you later on that perhaps they may have stolen your wallet or something else of value you had in your car. So those are a number of the ways that the police can actually go through and search your car.
A Quick Review
I’ll just review those again quickly. The police can search your car…
- If they have a search warrant
- If they have probable cause to believe that they’ll find some evidence of a crime within the car
- A search incident at the same time as a lawful arrest of you will allow them to get into the car
- A search for the safety of the officer
That means that if there’s some reason for the officer to fear for his safety, they will be able to search for weapons within the car. Even if you’re ultimately allowed to leave, you’re going to be patted down, and they are allowed to get into the car and search that area to make sure that you’re not going to retrieve a weapon once you get back in the car.
And the last is if they’re going to tow the car. In that case, they call it an inventory search just to make sure they’re accounting for all of your valuables so that you can’t claim later on they stole something from you.
If You Have Questions
If you have any questions about when the police are allowed to search your car or your person or about any of your privacy rights guaranteed under the Constitution, please feel free to give me a call or shoot me an email. I’d be happy to speak to you about it.
August 18, 2020
I’m Attorney Mike Contant. Here’s a question we frequently get asked when people talk to us about a drunk driving case, “Can the police draw my blood? And under what circumstances?” In Massachusetts, there are only two circumstances where the police get to draw your blood.
A Search Warrant
The first is that they get a search warrant. A search warrant is a document issued by the courts. The police would have to go seek a clerk magistrate or a judge and provide them with enough information, usually in an affidavit, to establish probable cause. They need to convince them that they’re going to find evidence of a crime by taking your blood.
This is rare in a drunk driving case. Still, the police can take this step to go ahead and get a search warrant for your blood. That’s one way they can force a blood draw.
The second way is if you actually consent when they ask for your consent or when they ask you to sign a consent form saying that a medical representative is authorized to take your blood.
Under these circumstances, many people are afraid and they don’t realize that they do not have to give their consent. They have every right to say, “No. You cannot take my blood. I am not consenting.” And that is our advice. You should always say, “No. I don’t want to consent to this blood draw.”
A Third Way The Prosecution Can Get A Sample
In many cases involving drunk driving, there’s a third way that the prosecution can get a blood sample. This is where you were in an accident and were injured or otherwise brought to the hospital as a result of some medical complaint following your arrest.
What happens at the hospital is that they will often take blood to determine how to diagnose you and how to treat you. Now, keep in mind that this isn’t the police doing this. It’s the hospital personnel, and it’s done as a means of treating you.
Unfortunately, what happens in these cases is that the prosecutor, once you’ve been brought before the court, will learn that you went to the hospital because the police wrote it in their report and they’ll subpoena those records from the hospital to get your blood test to try to use it against you in that drunk driving matter.
This happens quite often. And, unfortunately, it’s not the police doing it. Because the police, like I said, can only do it in one of two ways. One is if they have a warrant. And two is if you consent.
If You Have Questions
If you have any questions about when the police have the right to draw your blood, about drunk driving or about anything related to the criminal process, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.
August 18, 2020
I’m Attorney Mike Contant. Did you know you can be arrested for drunk driving even if you’re parked? A couple years ago, we had a client, Eric. Eric had been out drinking with his friends and was driving home. As he was driving home, he thought he had a little bit too much to drink. He decided to pull over to the side of the road and sleep it off.
A Client Story
As he was sitting there on the side of the road, he decides to turn the electrical component of the car on and listen to the radio. A short time later, an officer came along and asked him what he was doing there. And he tried to explain to him, “Taking a nap.” The officer asked him to step out of the vehicle and perform a field sobriety test because he thought he had drunk too much. Ultimately, Eric was arrested for drunk driving.
Now, you might be asking yourself, “Eric wasn’t driving. How can he be arrested for drunk driving?” And the reason for the arrest is that the elements of a drunk driving case in Massachusetts, called operating under the influence of alcohol, include three things.
The Three Elements Of Drunk Driving
First, you’re operating a motor vehicle. Second, you are doing so in a public way or in a way where the public has the right of access. And third is if you’re impaired. It’s not necessary that you’re falling down drunk but that your ability to operate the vehicle safely is impared due to the alcohol.
Operating A Vehicle
The first element is what I’m talking about here. The operation of a car does mean the normal things, like driving down the road, i.e., what you’d expect. But it also means that if you are manipulating any part of the mechanical or electrical portion of the car, either alone or in sequence with some other portion that can cause the vehicle to move, that can be considered operation as well.
For instance, having the keys in the ignition, even though you did not start the car, could be considered operation because you’re manipulating the electrical impulse of the car that could start it.
Where It Can Get Tricky
Likewise, if you were to pull on the gear shift and, say, put it into neutral even if the car isn’t running. Or if you’re sitting in the car, like a lot of people do in Eric’s situation. They want to be responsible and not drive drunk.
So they pull over to the side of the road.
And in Massachusetts, it gets pretty cold in the winter. They leave the car running so they can have the heater on. If you’re sitting in a parked car on the side of the road with the heater on, it’s considered operation for the purposes of a drunk driving case.
What You Must Do
So if you are going to do the responsible thing after you’ve been driving and you decide to pull over, it’s really important that you make sure you don’t turn the car on in any way. It’s even better if you take the keys and put them someplace else, the backseat or something like that.
Also, don’t sit in the driver’s seat. Make it so that it’s very clear that you have no intention of driving this car. It’ll be unlikely you could get arrested for drunk driving when you’re trying to do the responsible thing.
If You Have Questions
If you have any questions about this or anything else related to drunk driving or other traffic offenses, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.
August 18, 2020
Are Drunk Driving (DUI / OUI) Checkpoints Legal?
I’m Attorney Mike Contant. A question I’m often asked is, “Are drunk driving roadblocks legal?” And the short answer is, “If they’re done the right way, they can be.”
Normally, in order to stop a car, the police have to have some suspicion to believe that the car is doing something wrong, such as speeding or a traffic violation. In the case of drunk driving, they have to have a reason to suspect that the drivers are actually drunk. They may be weaving all over the road or have possibly caused an accident.
OUI roadblocks are essentially one of the exceptions to this particular rule. And the reason behind this and why the courts have come up with these reasons are as follows, “If they’re done the right way, they can be considered legal.”
The Requirements for Drunk Driving (DUI / OUI) Roadblocks
Now, the first requirement is that they have to be based on the public interest. Everyone knows of the dangers of drunk driving and that many people die in drunk driving accidents. They also know that it has become a bad thing in the Commonwealth of Massachusetts.
In The Public Interest
So the courts have said, “If you’re going to do a drunk driving roadblock, it needs to be based upon that particular interest of stopping accidents, stopping drunk drivers, and stopping the fatalities.” And the areas selected by the police to do roadblocks have to be areas where they’ve had a lot of incidents of drunk driving.
And that has to be proven either through arrest records, accidents, or fatalities that are all based upon drunk driving. So they have to choose the area for a drunk driving roadblock to be an area where drunk driving is a problem in order to take away the need to have that suspicion.
The Selection Cannot Be Arbitrary
The second requirement is that the selection of the area where cars will be stopped at a roadblock can’t be arbitrary. This means that it can’t be at the officer’s whim. It can’t be at his discretion. The cops don’t get to choose. Essentially and in most cases, what happens is that every car gets stopped. Specifically, every car gets stopped for a brief period of time at this roadblock, taking away all of the officers’ discretion.
The Safety Of The Public
Another requirement is that the safety of the public has to be assured while they’re doing this. Now, again, they’re doing something that’s unusual for the public. Usually, people are just driving down the road and don’t plan on being stopped. So seeing a roadblock can cause fear in the general public. And the police don’t want to cause fear and inconvenience.
So they have to make sure that the area is well lit and clearly marked. Typically, they’ll have signs announcing the roadblock several hundred feet or yards away, saying, “There’s a roadblock coming up. You need to stop.” Often, there will be cones directing people to particular lanes where an officer will talk to them. It has to be in an area where the people’s safety is assured.
Inconvenience Must Be Minimized
Another requirement is that the inconvenience to the person being stopped must be minimized. What that means is that they’re conducting the stop based upon no suspicion of criminal activity whatsoever. So in order to make sure that the general public isn’t significantly inconvenienced, they have to make sure it’s quick.
What that typically means is that a person who has not been drinking and driving and there’s nothing to suspect it should be in and out of there really quickly. When they get to the roadblock, the officer talks to them very briefly, maybe giving them some information on the dangers of drunk driving.
If the officer doesn’t detect anything in that very brief 10, 15, 20, or 30-second period of time of talking to the person, that person should be sent on their way in a very short period of time.
If A Driver May Have Been Drinking
Then again, the officers may detect that the driver may have been drinking. They may smell alcohol, hear slurred speech, or see something in the way they’re driving. In that case, they send only those people to a second area, where more screening will be conducted.
That screening may include more questioning, and potentially asking them to do field sobriety tests, or maybe even a breathalyzer test. But only in those circumstances. People where there’s no suspicion need to be sent on their way very quickly.
It Must Follow A Plan
Another very important requirement is that this has to be done according to a plan. And it can’t just be any plan. It has to be a plan that’s actually created by a supervisory person of the department. It could be a captain in the state police barracks. It can be someone higher up in the particular police department.
But there has to be a plan. The plan has to settle all these factors–where the roadblock is going to be conducted and why they selected that location. They have to show within the plan exactly what each officer is supposed to do and say in the sequence. It also has to show how many signs there are going to be, whether they are going to use cones, and where they are going to direct the people.
What The Plan Does
Basically, the plan is taking away all the discretion of the officers to just go off script and do what they want. This plan also has to be in writing. The state police of Massachusetts actually have a set plan they use for these things.
And it’s very important that they’re taking away any discretion from the officers to do what they want. They have to follow this plan or this script to the letter or there could be issues relative to the legality of this particular type of stop.
They Should Give Advanced Notice
There’s also something else, which is not so much a requirement but a suggestion. The courts have said that, “We’re not going to require you to give advanced notice to the public by publishing this in the newspaper or in other media outlets, such as on TV or the Internet.” But it’s a great idea.
And the courts have also said, “Although we’re not requiring it, we think the best practice would be to give advance notice to the public through the publication of the date, the time, and the approximate place, but not the exact place, where you’re going to be conducting this particular roadblock.”
So these are the requirements of what should be present when the police are conducting any type of drunk driving or OUI roadblock. If you have any questions about this or anything related to drunk driving or traffic offenses, please feel free to give me a call or shoot me an email. I’d be happy to speak with you about it.