Friday, November 28, 2008

Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude

Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.

Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.

Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.

What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.

If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:

1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.

2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.

3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.

4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.

For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.

5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.

6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.

7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.

IF you want to increase your knowledge of your BAC log on here

8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)

9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.

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