Guide to Louisiana DWI, Searches & Arrests
What about when you are asked, “Have you been drinking today?”
Remember that everything you do and say is being recorded either by audio, video or will be written in a police report. “NO” is always a right answer. “I drank two beers.” is always a wrong answer.
What if you are ordered to get out of your vehicle?
You must exit your vehicle. Failing to comply will result in your arrest. Stand erect, hands at your sides, out of your pockets. Do NOT lean against your vehicle. If you are sober, be sober. If your not sober, ACT sober and not casual or relaxed.
What if You are ordered to take a “Field Sobriety Test”?
REFUSE by Politely Declining, “No, thank you, I would prefer to not do that.” Simply stated: DO NOT WALK, DO NOT TALK, DO NOT FOLLOW MY FINGER (nystagmus test). There is nothing to be gained and plenty to lose.
The field sobriety tests (FSTs) used in Louisiana are heel-to-toe walk, one-leg stand, horizontal gaze nystagmus (they look at your eyes while using a pen light). Most officers will use a set battery of three tests. You are not legally required to take any FSTs. Most police officers have made up their minds to arrest you when they give the FSTs; the tests are additional evidence to use against you in court. Your results on those tests are determined by the completely subjective interpretation of the officer.
What if you are ordered to take a Intoxilyxer 5000 breath test.
Refusing to take a breath test results in a severe consequence, the automatic suspension of your driver’s license. Your First Refusal will get you a 180 day suspension with eligibility for hardship license after first 90 days. Your Second Refusal will get you 545 days without eligibility for hardship license. If you are sober because you have not consumed alcoholic beverages, submit to the breath test, and if given a choice, choose the more accurate blood test (less chance of a false positive). If you are not sober, DO NOT TAKE THE BREATH TEST. Remember: trying to calculate how much alcohol you can consume, according to your sex, weight and while at the side of the road with the police lights flashing in your eyes, after having anything alcoholic to drink, is an absurd exercise in risk deliberation.
You tested over the legal limit, does that mean you are guilty?
NO! Sobriety tests are merely evidence against you and not conclusive proof that you violated the law. There are many, many factors to consider when planning your defense, including the conduct of the police offi cers, the accuracy of the test and how it was administered, as well as the timing of the test. You will always have defenses to advance in all cases.
What if the officer asks to search my vehicle?
Do not consent to anyone searching your vehicle! Do not hand the officer your keys or unlock or open doors for the officer, as this will imply permission. Generally speaking, when an officer requests permission to search your vehicle, he looks for weapons, illegal drugs or evidence of drinking, all things that could put you in jail if any of them are found. Politely state that you not to consent to the search.
What if the officer threatens to call for a search warrant or drug sniffing dogs?
Refuse to consent to the search. In the end the police are going to do whatever they want to do anyhow, and are going to threaten you with this, that and the other all along the way. All you can do is say “NO”, so say “NO” and see whether your Rights will be respected or not.
What if the officer wants to search YOU?
Do not consent to police searching your person! Do not open your jacket or pull out your pockets as these actions may imply you consent to be searched. A “Pat Down” (frisk) of an individual to make sure no weapons are present (for the safety of the officer) is not a search. ‘Reasonable suspicion’ is the standard for officers justifying a Pat Down and police are always suspicious, reasonably or not. Following these guides for conduct during a traffic stop is the prudent way to avoid this type of scrutiny and preserves your rights to challenge police conduct and exhibits offered into evidence at court.
What do I do if I’m arrested?
Remain cooperative and polite with the officer(s). Do not resist, struggle or argue with the officers and keep in mind that the entire encounter is probably being video taped. Refuse to answer all questions the officer(s) ask and do not engage in ‘polite conversation’ with them at anytime. Do not speak to ANYONE about your case including police, friends, relatives, cell mates or staff; you do not know who else is listening.
Contact an attorney ASAP, either directly, through a relative, friend or acquaintance, in that order. Request a hearing to determine bail at the earliest possible time if the bail is not already “preset” for your charge. The three ways out of jail are: have a Judge call in a release, put up the bail to the jail, or buy a bond from the Bail Bondsman near the jail. An attorney will be best able to advise the people (family/friend) assisting you to be released during the time of your custody.
What happens to my vehicle?
Unless the police allow a passenger to take possession of your vehicle, it will be searched, towed and impounded. During a legitimate arrest, the police are allowed to search your person and your vehicle, whether you have consented or not.
What if I’m not read my (Miranda) rights? Charges against you will not be dismissed because you were not read your rights. In some cases a judge (not the police or prosecutor) will refuse to admit evidence against you that was obtained without notifying you of your rights. The best course of action is to not answer any police questions or engage in communication about your arrest with anyone except with your attorney. During the process of being arrested, processed and jailed there are opportunities for adverse evidence to be gathered unbeknownst to you at the time.
What do I do now?
Find yourself an attorney you TRUST to handle your DWI criminal case. You will not be permitted to represent yourself in most courts. Paul Massa, Attorney at Law can be reached at (504) 975-6606 to consult regarding your DWI, Driver’s License Reinstatement or Traffic Ticket matter. On my website www.ATrafficTicket.com I have additional information to help you understand the charges against you, the potential outcomes, and how you can fight the charges and protect your rights.
Do not wait!
In Louisiana you have 15 days to request an administrative hearing regarding the automatic suspension of your driver’s license unless you take steps to protect it. Attorney Paul Massa can help you stay on the road, keep your record clean and protect your rights.