When pulled over, do you have the right to contact legal representation?

[NoStateofMind]

http://www.ksl.com/?nid=148&sid=15728616

This guy tried and got tazed twice. According to this police officer thats not an option. The obligatory "Don't taze me Bro (this case sis)" applies.

 

[dullard]

Constitutionally, yes you do. Legally, no you don't. It is called implied consent. Link.

In most jurisdictions you agreed when signing your drivers license to give up your right to legal representation when pulled over. So, you legally gave up your constitutional rights. I do believe that some day that will be overturned in the courts. But that might take decades.

 

[nageov3t]

excessive force perhaps, but Utah is an implied consent state.

 

[Texashiker]

The victim will have plenty of time to talk to their attorney after he is beat down.

Cops dont care about attorneys, there out on the street to do a job.

Personally, I think blowing into a breathalyzer is self incrimination. It should be a persons right not to give the police any evidence to use against them - unless the police have a court order to obtain such evidence.

So, you legally gave up your constitutional rights.

A lawyer once told me certain rights can not be signed away.

 

[Blackjack200]

Constitutionally, yes you do. Legally, no you don't. It is called implied consent. Link.

In most jurisdictions you agreed when signing your drivers license to give up your right to legal representation when pulled over. So, you legally gave up your constitutional rights. I do believe that some day that will be overturned in the courts. But that might take decades.

I've heard that if the cops decide to search your car you should state "I do not consent to this search".

Is that worth a hill of beans if they find anything?

 

[WaTaGuMp]

I'm not as think as you drunk I are occifer.

 

[Zebo]

He got tazed for not following a lawful order of exiting vehicle, not for declining DUI test.

 

[Broheim]

The victim will have plenty of time to talk to their attorney after he is beat down.

Cops dont care about attorneys, there out on the street to do a job.

Personally, I think blowing into a breathalyzer is self incrimination. It should be a persons right not to give the police any evidence to use against them - unless the police have a court order to obtain such evidence.




A lawyer once told me certain rights can not be signed away.

...

wouldn't want the "pigs" infringing on your right to drink and drive D:

also, breathalyzer tests doesn't count as evidence, only blood tests do.

 

[dullard]

A lawyer once told me certain rights can not be signed away.

I personally agree with that lawyer. To me rights are rights no matter what. The consitution doesn't have asterisks.

But the constitution, laws, rules, and policies are four seperate things. They often don't overlap. It'll take a lot of fighting to get our constitution into all laws. With the current makeup of the court, I don't see that happening until many of the supreme court justices are gone.

 

[NoStateofMind]

I've heard that if the cops decide to search your car you should state "I do not consent to this search".

Is that worth a hill of beans if they find anything?

I would say probably not. Whatever they find they'll invent probable cause. Which is why you should ask if you are being detained and what reason you were stopped. However, I am not a lawyer and know very little about law so I would wait on better counsel.

 

[dullard]

I've heard that if the cops decide to search your car you should state "I do not consent to this search".

Is that worth a hill of beans if they find anything?

That is beyond my legal knowledge. I'm sure someone here might know though.

 

[EagleKeeper]

I personally agree with that lawyer. To me rights are rights no matter what. The constitution doesn't have asterisks.

But the constitution, laws, rules, and policies are four separate things. They often don't overlap. It'll take a lot of fighting to get our constitution into all laws. With the current makeup of the court, I don't see that happening until many of the supreme court justices are gone.

You also have privileges that are granted to you by the law; People sometime do not see the difference.

You have the right to own the vehicle.
You have to right to privacy of the vehicle.

You have the privilege to operate a vehicle based on qualifications of the law.
You have the privilege to use the vehicle on a public way based on qualifications of the law.

So you can refuse consent to have the vehicle searched.
In the process, your license can be longer used as a legit operational document (not valid - pulled)
You can not drive a vehicle.
The law can then tow the vehicle to place it in safe keeping until you can legally have it retrieved (Valid license by you or someone else). In the meantime the contents could get inventoried legally; which is what the issue was in the first place.

The law can also ask for a warrant to search depending on your behavior.

So while you are within your rights to refuse consent; the repercussions can be a problem.

Pick your battles where either you are sure you can win or withdraw without damages.

 

[Iron Woode]

Here, no Officer can, with threat of physical force, force anyone to take a breathalyser. All they need to do is arrest you for refusing and then get a Court Order to compel a blood sample for testing. Meanwhile your car is impounded and you sit in a holding cell all night.

 

[Linflas]

Constitutionally, yes you do. Legally, no you don't. It is called implied consent. Link.

In most jurisdictions you agreed when signing your drivers license to give up your right to legal representation when pulled over. So, you legally gave up your constitutional rights. I do believe that some day that will be overturned in the courts. But that might take decades.

I always thought implied consent meant that if you refuse to take the tests you automatically lose your license or are basically subjected to the same penalties you would have been subjected to had you taken the test and been found legally over the limit.

 

[Pantlegz]

...

wouldn't want the "pigs" infringing on your right to drink and drive D:

also, breathalyzer tests doesn't count as evidence, only blood tests do.

Not true at all, my brother got a dui that was within the margin of error for the breathalyzer device (.080x) and demanded a blood test, the officer said that after he made bail he could go to the hospital and have a blood test done.

Basically his lawyer said is was better to take the diversion rather than risking getting found guilty

 

[sourceninja]

He was well within his rights to refuse to answer questions or take a breathalyzer. He also was not tazed for that. He was tazed for refusing to exist the vehicle. That would be willfully ignoring the lawful order of an officer.

The officer was attempting to detain him (with her rights) and he was refusing. He got what he deserved. By saying he wanted a lawyer, her only option would be to arrest him. He wouldn't get out of the car and so he got tazed.

 

[dullard]

I always thought implied consent meant that if you refuse to take the tests you automatically lose your license or are basically subjected to the same penalties you would have been subjected to had you taken the test and been found legally over the limit.

While what you said is true, implied consent also means you have lost your right to legal representation. That latter part I personally disagree with.

Miranda rights are a combination of the 5th and 6th amendments. They generally go like this: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."

Implied consent says you give up your right to that attorney when you are pulled over.

I have no problem with taking away driving privledges for refusal to take a breathalyzer (or any similar dispute when you are pulled over). But arresting you, giving you a fine, sending you to jail, etc (all legal repercussions) without allowing you to see an attorney during questioning is just plain wrong.

 

[boomhower]

I have no problem with taking away driving privledges for refusal to take a breathalyzer (or any similar dispute when you are pulled over). But arresting you, giving you a fine, sending you to jail, etc (all legal repercussions) without allowing you to see an attorney during questioning is just plain wrong.

You can be arrested and put in jail without an attorney. You can't be fined however. When you receive a traffic citation you have the right to go to court with your attorney.

Miranda rights only apply after you are arrested. Basic questions at a traffic stop do not require miranda nor does it apply. But you certainly still have the right to refuse to answer any questions with the exception of identifying information(name, DOB, etc) They cannot make you answer anything about why you were stopped. i.e. you don't have to tell them how many beers you've had or why you stink like a bar or why you just side swiped a car a couple miles back.

 

[dullard]

They cannot make you answer anything about why you were stopped.

With the obvious exception of forcing you to "answer" how drunk you may or may not be (through a breathalyzer, blood test, or just assuming you are guilty and bypassing the whole courts altogether). It isn't too much to ask to have an attorney present when you are being submitted to this type of "questioning".

 

[Exterous]

He was tazed for refusing to exist the vehicle.

Holy shit! He got tazed for refusing to make his imaginary vehicle real? This is very worrying indeed

 

[BoomerD]

From the JewTah Driver's handbook:

If an officer requests you to take a test to see if you
have alcohol or drugs in your system (including
prescription medication) and you refuse to be
tested, your license may be revoked for 18
months for the first offense, and 36 months for
a second or subsequent offense. If you are
under the age of 21, the license will be revoked
for either 18 months for a first offense, or 36
months for a second offense; or until you
reach the age of 21, whichever is longer. This is
called the Utah Implied Consent Law.

Utah Implied Consent Law
When you operate a vehicle or a motorboat in the State
of Utah, it is implied that you will submit to a chemical
test of your breath, blood, urine, or oral fluids to
determine the alcohol or drug content, if asked to do so
by a peace officer. This is called the IMPLIED
CONSENT LAW.
Utah accepts the results of chemical tests to help
determine whether an individual has been driving or in
actual physical control of a vehicle or a motorboat while
under the influence of alcohol, drugs, or both. If an
officer arrests you for driving while in such a condition,
you must submit to the chemical tests selected or
designated by the officer.
If you refuse to do so, your license may be revoked
for 18 months on the first offense and 36 months
for second or subsequent offenses. If you are
under the age of 21, the license will be revoked for
either 18 months for a first offense, or 36 months
for a second offense; or until you reach the age of
21, whichever is longer. If asked to take any chemical
tests, you may not:
�� Choose which tests you will take,
�� Consult with an attorney or doctor before agreeing
to take such tests.

http://publicsafety.utah.gov/dld/documents/2011DLHandbook1PDF.pdf

 

[BoberFett]

You also have privileges that are granted to you by the law; People sometime do not see the difference.

You have the right to own the vehicle.
You have to right to privacy of the vehicle.

You have the privilege to operate a vehicle based on qualifications of the law.
You have the privilege to use the vehicle on a public way based on qualifications of the law.

So you can refuse consent to have the vehicle searched.
In the process, your license can be longer used as a legit operational document (not valid - pulled)
You can not drive a vehicle.
The law can then tow the vehicle to place it in safe keeping until you can legally have it retrieved (Valid license by you or someone else). In the meantime the contents could get inventoried legally; which is what the issue was in the first place.

The law can also ask for a warrant to search depending on your behavior.

So while you are within your rights to refuse consent; the repercussions can be a problem.

Pick your battles where either you are sure you can win or withdraw without damages.

Which is why I don't feel bad when I hear about cops getting killed during traffic stops. With the harassment that the state can bring down on an innocent person who simply believes that their rights matter more than the nanny states desire to keep everyone under their thumb, it's important to remind them now and then that they're not really in charge.

 

[seepy83]

also, breathalyzer tests doesn't count as evidence, only blood tests do.

I'm not sure who told you that, but I hope you don't believe it's true.

IANAL, and I know laws can be different in each jurisdiction, but I know for a fact that around here breathalyzer tests/results stand up in court every time.

 

[Whisper]

I'm not sure who told you that, but I hope you don't believe it's true.

IANAL, and I know laws can be different in each jurisdiction, but I know for a fact that around here breathalyzer tests/results stand up in court every time.

I believe in GA, the way it works is this--a breathalyzer administered roadside can't/won't be submitted in court as definitive evidence of you being over the legal BAC. However, like a failed field sobriety test, it gives the officer cause to arrest you, take you to the station, and then administer the (more accurate?) breathalyzer they have available there.

Also, I'm not sure if this is true in all states, but I believe in GA you can be arrested even when blowing below the legal limit if, in the officer's judgment, you're impaired. I'd imagine that would be a harder argument to support in court vs. a breathalyzer reading, though.

 

[Taughnter]

I've heard that if the cops decide to search your car you should state "I do not consent to this search".

Is that worth a hill of beans if they find anything?

In theory, yes. In practice, maybe. Lets say you wanted to challenge any evidence recovered/discovered in said illegal search: You'd make a motion to suppress said evidence arguing a violation of your 4th Amendment Rights. In this case, you're got a pretty clear standard on your reasonable expectation of privacy and assuming it is your car and your "items" found in the search, you've probably got standing to make the motion.

From there it's largely going to depend on the police report. Did the officer say you consented? If so it's going to largely come down to who is more reliable in their testimony. In some places consent is required or at least recommended to be in writing so in those cases it's a bit harder to fake consent, other times the officer merely has to say you gave consent and then it's your word against theirs. Alternatively, the officer can say there was probable cause. I'd be lying if I said that I haven't seen numerous instances of police blatantly falsifying reports to create the appearance of probable cause to keep the evidence from being suppressed. In other words, your success may depend on having a good attorney or on the cop not being a good witness.

Of course there are other factors involved and other exceptions to the Warrant requirement for automobile searches. If the officer has another reason to arrest you, for example, they can generally search your vehicle for "inventory" purposes or as a search incident to arrest.