How Should You Interact With Police During a DUI Stop and While in Custody?

Interviewer: The police may pressure you to do certain things. How do you say “I would rather not,” without being viewed as uncooperative or as possibly resisting arrest?

Ellis: It is a fine line. Usually you want to be cooperative to a certain extent, especially with the testing. However, I always tell people if the officer wants you to touch your nose or walk a straight line, politely say “No thank you, officer. I would rather not do that.” Yes, there is a fine line.

First-time offenders especially do not want to be deemed uncooperative. This is because part of getting into the ARD program is the police officer has to agree to it. He has to sign off on it.

When I was a prosecutor, if a cop objected to ARD it was ultimately my decision as a prosecutor. However, sometimes I denied the person the program because the cop objected.

Other times, I granted it over the cop’s objection. However, it is a case by case basis. So, to answer your question, you never want to offer up too much information. On the other hand, you do not want to be deemed uncooperative. It is a very fine line the motorist has to walk.

Interviewer: People say, “The police did not read me my rights. The whole case should be thrown out.” How does Miranda work, and when do Miranda rights apply?

Ellis: Every client says to me, “They did not read me my rights.” I think this is a product of T.V. and Hollywood. Everybody thinks the minute they are arrested they have to be read rights. They do not.

Miranda warnings- the warnings where police have to remind somebody they have a right to remain silent, they have a right to obtain an attorney- only apply when somebody is in custody. At this point, they are going to be asked questions to which their answer is going to incriminate themselves.

With most DUI cases, it really does not matter what the person has to say, as far as answering questions. This is because they base it on the officer’s observations and on the testing results. Even if Miranda should have been given and it was not, the most we can do is file to suppress the statements.

If you confessed to something where Miranda should have been given, the most we can do is get the statements thrown out. The case stays open, and they still prosecute the case based upon the observations. However, they have to do it without your statements.

Everyone thinks, “Oh, they did not give me Miranda. It should be dismissed.” That could not be further from the truth.

Interviewer: With field sobriety tests and questioning before arrest, are the police trying to get information out of you that is not protected by Miranda?

Ellis: The courts have said field sobriety tests are not protected by Miranda. The blood test is not protected by Miranda. A lot of the questions when a police officer pulls you over are called “investigative questions.” The officer is just trying to ascertain what happened.

You get into problems when the officer starts asking you questions: How much did you have to drink? Where were you drinking? When was your last drink? These are things that could make or break a case.

These are the things where Miranda should be given, assuming the motorist is not free to leave. That is the first step in Miranda. You have to be in custody, not free to leave. Then you are asked a question where you are going to incriminate yourself with the answer.

Interviewer: Between a breath and blood test, which one is more commonly given and where is it given?

Ellis: The law says it is up to the police officer to determine what type of test they are going to give. Typically, there are three types of tests: blood, breath or urine. Initially, a lot of motorists at the scene are given what is called a PBT, preliminary breath test.

It is like a little pen you breathe into. It is part of the field testing, and it is not a very accurate device. It is just part of the officer’s field sobriety testing. It gives them an idea of approximately what is in your system. The law says that is not really evidence against you. That is just part of the field testing.

Blood testing is probably the most prevalent in this area. Every county is different. In Philadelphia, typically it is done downtown at the Roundhouse. They do testing right there in the police administration building.

Bucks County typically transports you to the closest hospital for blood to be drawn. In Lehigh, they do blood testing in hospitals, and they also do blood testing at a DUI booking center. Montgomery does this too. They have a DUI booking center where they do the test.

Very few departments are using the old-fashioned big breathalyzers back at the station. They are not as accurate as blood. It is scientifically known that they are approximately 90% accurate.

The way that I like to look at it as a defense attorney, they are 10% inaccurate. Big breathalyzers are known to be up to 20% inaccurate. Those are being phased out.

Interviewer: More often than not, blood tests are administered?

Ellis: Right, more often blood tests are administered.