Interviewer: Under what circumstances do you think someone should take the tests?
Commercial Drivers Are Subject to Different Regulations
Attorney: The big problem is if they have a commercial driver’s license. That’s somebody who probably needs to make a living. Of course, there are all sorts of different rules for the commercial driver’s licenses. It they refuse to take the tests they will lose their commercial driver’s license. In a DWI case you do not have the right to remain silent, because in a Miranda warning it says “Anything you say can and will be used against you in a court of law. You have a right to remain silent,” and the judge always tells everybody the accused never has to say anything, and his silence cannot be used against him.
Are Your Rights Interpreted Differently in a DWI Case?
In a DWI case, they specifically tell you you’re silence will be used against you. Your refusal to submit to these tests can be brought up and said to a tryor of the fact, whether it’s being a judge or jury, that the reason that you didn’t take it, the jury can assume, is because you knew you were going to fail and you would be guilty.
So you have to weigh whether or not you need to have a driver’s license, and whether or not you need to drive during the pendency of the case.
By Refusing the Testing, You Are Not Providing Law Enforcement with Evidence to Use against You during the Case
But really the only time you really need to concern yourself with that is regarding have a driver’s license during the pendency of your case. I find that not having a breath test or a chemical test and not having field sobriety tests tends to help on the criminal’s side.This is because it’s the police officer’s opinion, and that’s all there is. In his or her opinion the person was intoxicated and all the things the person did, other than those four silly things, will come to prove sobriety much easier than you trying to disprove the tests in any way, shape or form.
Not All Police Vehicles Are Equipped with Video Cameras in New York State
Interviewer: In New York, do they use cameras in the police vehicles?
Attorney: Most do not. There are only some jurisdictions in New York that the police cars have cameras. In some police stations, they record the chemical tests and they will record having these field sobriety tests. In Nassau County, for instance, if you refuse to take a breath test, they then will record you taking field sobriety tests in the police station. But there is almost never a video of somebody doing these tests out on the road at 3:00 in the morning with the police standing there and the headlights and the flashlights, and the emergency lights flashing. That’s always an issue as well.
Typically, You Will Be Asked to Perform the Field Sobriety Tests Followed by a Request for You to Undergo a Chemical Test
Interviewer: Let me ask you, can they issue a field sobriety test and then do a chemical test, such as a blood draw or a Breathalyzer test after that?
Attorney: That’s how they usually do it. They will pull the person over and ask them to submit to field tests. Regardless of what the person does on the field test, the police will almost always say they performed poorly or they failed.
They will arrest them, take them back to a police precinct and ask them to submit to a chemical test, whether it’s a blood test, a urine test or a breath test. In some occasions, after that, they give them another set of field sobriety tests again a second time, the same ones they did out on the street, and sometimes they even videotape those in the precinct.