Turn Calls/Inquiries into Signed Retainer
Agreements and Cash in the Bank… Remotely
interviewer Wow. You’re also seeing prescription drugs playing more and more of a role?
Robert It’s also scary from the standpoint of it, obviously, being the job of the attorney to try and educate the judges as to what these field sobriety tests and the testing or lack thereof that was done, are supposed to mean and the lack of scientific validity or specificity.
So many times, I just seen that judges take the opinion of “Oh, there’s some sort of narcotic in the blood system. This person didn’t do that well on their test”. The reality is that people are taking these prescription drugs because of panic attacks or anxiety, so how can any weight be given to these tests?
Yet I see that happen and it’s one of the reasons I recently developed my own Virginia DUI Lawyer iPhone and Droid app for free, where I’ve got on there “know your rights.” People who have taken any of these medications or suffer from anxiety or anything else, I’m amazed how many people don’t realize they’re not required to take these field sobriety tests, walk like a chicken or stand like a flamingo or follow the magic pen with their eyes.
One of the things I’ve done this year is take a more active stand toward telling people “Hey, you don’t have to take these field sobriety tests. You don’t have to take the preliminary breath test. If you’ve had any amount of alcohol, you’ve had any sort of prescribed medications that one of the side effects could possibly be drowsiness, I wouldn’t do these”.
interviewer One issue I’ve been asking about is, literally, how do you refuse them? I’m sure at times police can be very pushy or insistent.
Robert Correct. It actually is very awkward for people. That’s why in my iPhone app, I specifically tell people how they should do it. You’re right. People are told, “You should be cooperative.” But right off the bat, the police are asking questions to try to get people to put the noose around their own necks.
Even a routine speeding stop, it’s difficult for me when I’ve been pulled over for speeding, to try to just be cordial with the police officers if the first question out of his mouth is “Do you know how fast you were going?” or “Do you know why I pulled you over?”. He’s not asking that because he doesn’t know why he pulled you over. He’s asking you that because if you say “You got me. I’m in a hurry for this”, if you try to show up in court and say “Judge, I was watching my speedometer and I was doing 25 exactly in that 25-mile-per-hour school zone” he can whip out his notes and say, “Robert said at the scene ‘You got me. I knew I was flying because I was late for work.'”
What I actually do in my list of things, one of the sections in the DUI Lawyer app is called “Know Your Rights” and I basically list all the rights and I also say in the last thing “assert your rights”. To assert these rights, say the following “I assert my right to remain silent. I want a lawyer. I do not consent to any searches of myself, my car or any property. I do not consent to any test except as required by DUI-implied consent. If I am not under arrest, please let me go”.
Of course, the thing is that people have to be sober enough to access that if they want to read it verbatim. Maybe the new DUI test will be if they try to access my iPhone app and tell the police officer that he’s going to be attacked by angry birds, maybe they’re too drunk to be driving to begin with. We’ll see. That may be the new sobriety test.
interviewer Have you actually gotten feedback from anyone who has responded perfectly to an officer’s request for field sobriety and what was the officer’s reaction?
Robert I have not. I have talked to a gentleman who I knew of, and he’s a very straight shooter and a very intelligent business man. I know when the officer stopped him, he said it to the officer he said “I never raised my voice and the officer got very agitated because I said ‘No, officer. I’m not going to do any of those tests. I’m not going to blow into the breath test and I realize that I am not required to do so.'” The officer got very agitated.
The big thing that it does, is there’s a United States Supreme Court Case, Berkemer v. McCarty, that says an officer in a traffic stop can ask some investigatory questions that do not kick in the requirement of Miranda rights. Whereas reading the statement I just did and saying, “If I’m not under arrest, I’d like to go,” all of a sudden, the person has thrown the ball back into the officer’s court and said, “You’ve either got to arrest me, at which case my lawyer may have a great argument in saying there was no probable cause for arrest or I’m just going to leave and take a cab right now”.