Should I Stay or Should I Blow?

I am often asked by clients and friends whether or not they should submit to a breathalyzer test if they are arrested for driving while intoxicated. They usually preface the question with, “I’ve been told I should always refuse.” Unfortunately, the answer is more complex than that, and it is impossible to render advice that could be applied evenly in all circumstances. If you called me late at night to ask what you should do when faced with the question, my advice will be different depending your particular circumstances.

And to that extent, this post is not legal advice.  I am posting this only so that the reader can better understand the issues we consider in helping our clients who have been arrested for DWI.

Missouri DWI laws can affect a person in two ways. First, there is the potential of criminal consequences, including probation, fines, or a jail term. Second, the arrest may have severe ramifications on your driving privileges. Whether you submit to a chemical test—blood, breath or urine—can affect the outcome on both the criminal case and your ability to drive.

Let’s assume that you are pulled over in Missouri. On a typical DWI stop in Missouri, the officer must first have a reason to stop you, usually either by you entering a DWI checkpoint or by witnessing you commit a traffic violation. Once the officer has you pulled over, she can only conduct a DWI investigation and order you from the car if she reasonably believes that you may be too intoxicated to drive. Smelling of booze, admitting to drinking, acting drunk, erratic driving, etc., are all reasons for an officer to order you out of the car for additional testing.

Once the officer orders you out of the car, you can expect a battery of tests that were designed by NHTSA in the late 1970s. These are known as the Standardized Field Sobriety Test (SFST), and they include a walk-and-turn, one-leg stand, and the horizontal gaze nystagmus test (HGN, which is an eye test). The two dexterity tests in theory ferret out impaired drivers by forcing the brain to both concentrate on the balancing act itself as well as the instructions that were given. This type of multitasking is harder when you’ve been drinking. The HGN test looks for the presence of nystagmus, which is an involuntary twitching of the eye that occurs when the neurological impulse in the optic nerve is affected by an intoxicant.

Incidentally, the HGN test is rarely administered correctly. A study in Texas surveyed 50 random dash-cam videos of DWI stops. Forty-nine of the 50 state troopers administered the test incorrectly. In Missouri, improperly administered HGN tests are inadmissible in court, and in my practice I often see officers adminster it incorrectly.

These tests ultimately are designed to give an officer sufficient evidence for probable cause to arrest you. According to NHSTA, the combined results of the tests are approximately 80% accurate at distinguishing between who is and is not impaired. Yes, that means that if the tests alone are the exclusive barometer for deciding whether to arrest, one in five will be falsely arrested. Nonetheless, they have been upheld as a sufficient basis for probable cause to arrest.

In Missouri, you will not lose your license for refusing to submit to SFSTs or portable roadside breathalyzer tests (PBTs).  If you are asked to submit to testing that may impact your license, the officer must tell you so.

Once you’ve been arrested, the officer will take you in and, after a series of questions, ask you to submit to a breathalyzer test. He will also tell you that if you refuse to blow, you will lose your driving privileges for one full year. And the decision to blow or not isn’t easy.

In the context of the criminal case, i.e. whether or not you’re guilty of driving while intoxicated, refusing to blow is evidence of consciousness of guilt. That is, why would you refuse if you had not been drinking? So refusing has some evidentiary value against you, but it isn't as damning as a high BAC result. If you blow and your blood alcohol content exceeds 0.08 %, you can be convicted of driving with excess BAC regardless of impairment. In other words, it becomes nearly automatic for a prosecutor to prove you’re guilty.  From a purely evidentiary stand point, then, refusing to blow denies the prosecution of potentially strong evidence, and improves your chances of winning at trial (contrarily, if you've not been drinking or have had only a small amount, it also eliminates the possibility of an exhoneration).

For a first time DWI offender in Missouri, a guilty finding generally carries probation along with special conditions, such as a SATOP (Substance Abuse Traffic Offender Program) class, Victim Impact Panel, and community service. A person rarely goes to jail on a first offense. So the consequences of being found guilty are generally tolerable though inconvenient, with the biggest impact for most being the financial cost of resolving the case (usually $2,000 to $3,000 total). For a person with prior offenses, the consequences can become far more severe, including mandatory prison time. The decision to provide evidence that can be used against you at trial—while balancing against the impact on your license—will depend in part on whether or not you have prior DWIs.

The Missouri DWI statute has yet again been amended, and in some instances jail may be required even for first-time offenders. The bill was not available online at the time of this posting, but I will update this once it becomes available again on the General Assembly’s website.

If you submit to the test, and the test is high, you will receive a 15-day temporary driving permit. You may continue driving past that point so long as you file a timely appeal. These appeals are handled by the Administrative Hearing Commission, which will not negotiate an outcome that allows you to avoid the suspension. That means that so long as the rules were followed by the officers, you will lose your driving privileges for 30 days, and they will not be returned until you complete SATOP and pay a reinstatement fee.

If however, you refuse to blow, your appeal will end up in Circuit Court, where the local county prosecuting attorney, rather than a hearing officer, represents the Department of Revenue. Many of these attorneys will negotiate an outcome where you will not lose your privilege to drive. But this varies on a county-by-county basis. For example, Platte County prosecutors will not negotiate; if the judge finds that the officers followed the rules, you will lose your privileges for a full year. In Jackson County and Clay County, however, the prosecutors will agree in most cases to an outcome where your driving privileges are preserved depending on your prior record and the outcome on the underlying ticket.  This means that in some circumstances, refusing to blow will not only improve your defense at trial, but also preserves your driving privileges.

In sum, whether to blow or not depends heavily on your prior record and the county where you have been arrested. It’s a complex question that can only be answered on a case-by case basis. If you find yourself in this situation, get a hold of a lawyer. By law, you will have 20 minutes to find one before you have to decide what to do. So start dialing….

My 24-hour number is (816) 521-8249.
Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
http://www.johnson-johnsonllc.com/

Is This a Police State?

Lat year I struck up a conversation with a nurse who was caring for my grandmother. We chatted for a few minutes, and she asked what I did for a living. Finding out that I’m a criminal defense attorney in Kansas City, she couldn’t wait to tell me about her time as a cop in Olathe in the early ‘90s. She said that she decided to become a police officer so that she could help people—undoubtedly true, as she later became a hospice nurse, which is hardly a task for the selfish. Anyway, she told me that there was a standing, unwritten—secret, really—policy of tailing any car with out-of-county tags and pulling the driver over once they witnessed a traffic violation.


She also told me why she resigned in disillusionment after only a year on the job. She and her partner had been in a high-speed car chase after trying to pull someone over for speeding. The guy finally pulled over, and she and her partner ordered the driver out at gunpoint. He complied, moved to the back of the car, put his hands behind his head, and got on his knees. From behind her, however, the unit’s canine officer came rushing in and beat the hell out of the guy, cutting his eye open, even though he had already submitted to the officers. Anyway, she completed the arrest, and took the man in for booking, but, once at the station, the driver slammed his head into the sally port window. Tasked with drafting the report, she wrote that the driver’s cut was from a closed fist to the head delivered by the dog officer. Her sergeant hauled her in and demanded that she write that the injury was due to the driver slamming his head against the window. She refused, telling her supervisor that she would absolutely not commit a crime by filing a false report. She was suspended for a week and then promptly quit her job.

Obviously, tailing non-Johnson County drivers and then harassing them for coming into Olathe is morally repugnant. It’s not surprising—I mean, how long will I last in Mission Hills with my Missouri tags?—but is it legal? And if it is legal, how far can the police take it? This leads directly to the legal conclusion that the police have nearly unlimited power to search someone’s car at will and without probable cause.  Here's how:

Several years ago, a woman in Texas was arrested for not wearing a seatbelt. The officer berated her, cuffed her, and dragged her in to post bail for a charge that carried no possibility of jail time. She pleaded no contest to the ticket, paid her fine, and then sued the city for the apparent civil rights violation. The U.S. Supreme Court ultimately reviewed the case, and decided that as awful as the officer’s behavior was, it was not unconstitutional. They ruled that a cop may, upon belief that a traffic violation occurred, arrest the driver. (Any person living east of Troost knows this to be true.)

In Missouri, as in Texas, officers are expressly permitted by statute to arrest individuals whom they have witnessed commit any offense, including ordinance violations. 

Once a driver is arrested, the officer must deal with the car. So long as there is a written policy regarding the towing of vehicles, the officer may tow the car. In Kansas City, for example, officers may choose to tow a car, leave it parked, or release it to another driver. And, whether or not a car is towed may be left to the discretion of the officer (this is yet another Supreme Court ruling). Once an officer decides to tow the car, he or she may inventory its contents, i.e., search it. This search is theoretically to protect the department from liability for damaged or stolen property, but, so long as it is legally justified, it may be used to search for contraband. These searches, too, are completely constitutional.

In sum, an officer may follow you until you commit a traffic infraction, no matter how minor. Didn’t turn on your signal soon enough? Didn’t shut down your high beams in time? Drove in the left lane without passing? He may then pull you over and arrest you for the violation. Once you’ve been arrested, the cop may tow your car, and search it before it’s towed. It’s that easy.

Now, how secure do you feel?


Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
http://www.johnson-johnsonllc.com/

Where Has All the Justice Gone

The Jackson County Prosecuting Attorney's office has a baffling policy of allowing crime victims and their families, rather than the attorneys, decide the course of criminal cases. Highly trained, intelligent prosecutors, all with advanced degrees, and most with years of experience and dozens of jury trials behind them, are hamstrung by a policy that strips them of discretion and places it in the hands of people who not only lack any skill in the area, but are motivated exclusively by their emotions.


That is not to say that the feelings and wishes of crime victims aren't important. But if we are to have meaningful justice, our system cannot be at the mercy of someone who is more likely motivated by revenge than justice. Prosecutors should be disinterested. Unbiased.  They should seek only justice. A good prosecutor ensures that those who commit crimes are treated fairly, that defendants' rights are upheld, and that the innocent are exhonerated. Justice, not winning, is the only goal.

For generations, elected prosecutors in Jackson County trusted their assistant lawyers to make good decisions. They balanced sympathy for victims against evidentiary problems, difficult legal issues, and real risks of convicting the wrong person. The legal system is complex, and figuring out a case isn't easy.  Mental health issues, search and seizure problems, false confessions, and punishment are difficult issues we wrestle with every day.  A skilled attorney, not an untrained amateur, should decide how a case is handled. Letting a rookie make legal decisions is like letting a cancer patient perform her own surgery.  The Jackson County Prosecuting Attorney's Office disagrees.  And we have less justice as a result.



Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
http://www.johnson-johnsonllc.com/

The Guess Work of Forensic Scientists

Too often in the work I do, I have seen so-called scientists reach the most inexplicable conclusions, usually without any scientific basis  for their claims.  Here is another example of the forensic science community abandoning scientific method.

Thirteen years later, arson case unravels

Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
www.johnson-johnsonllc.com

Post No. 1

I've now spent ten years working in the criminal justice system as a defense attorney, first as a public defender, and now a private attorney.  Over the years I've witnessed all of the heartbreak and exhilaration, highs and lows of a system that is both too often a tragedy and too often tragic.  I have seen people do some of the worst things imaginable to each other, but I have known all of them as people, victims and defendants, all with real emotions, families, and lives.  I have seen this system commit some of the worst injustices, and I have seen real, live authority figures lie and cheat.  I have also seen the system work, reform people, and exonerate the innocent.

I hope this forum will provide some insight into the detailed workings of the criminal justice system from a defense perspective.  Our jobs are often misunderstood, holding a public perception framed more by O.J. Simpson than reality.  In time, as I write more here, perhaps at least one person will learn just a little more about what we do.  From plea negotiations to civil rights violations, I hope this will become a source for insight.

In my next post, I plan on explaining how the police have nearly unfettered discretion to search your car anytime they want to.



Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
www.johnson-johnsonllc.com