Watch What You Say, Officer
Another DUI where the cops had video recorded the encounter with my client shows that, even if you don’t do well on the tests, there may be more than one way to use that evidence to your benefit.
LN had a long 24 hours that ended up with a trip to the jail. He had worked the whole day before at his first job, then did a night shift at his second. Then he had gone to a car show before finishing up with a light dinner with friends. He was pulled over for following a police car too closely and then fell fast asleep in his car while waiting for the DUI investigative officer to arrive on the scene of his stop.
The video starts with about 60 seconds of the officer trying to wake LN up. Luckily, when he does wake up, he sounds tired and half-asleep, but not intoxicated. The officer then has him get out of the car to do sobriety tests and he doesn’t do them that well.
Now these tests are not something a person has to do. I’m often asked should I do them and the answer is totally subject to your unique circumstances at that place and time. The police cannot make you do them and they cannot order, direct or trick you into doing them. That’s where this particular cop messed up.
He told LN he needed him to do the tests to see if LN was okay to keep driving or if would have to get a ride. Did you notice there was nothing said about going to jail, which is exactly what happened after LN took the tests.
We took the position that the cop mislead LN into taking the tests by saying he would either be let go or given a ride, but not saying the ride would be to the county jail. It wasn’t enough to get the charge dismissed but it did get reduced to Reckless Driving and avoided a minimum 10 day jail sentence and 5 year license suspension for LN.