Wednesday, December 31, 2014

Mimi Coffey's New Year's Eve Formula

Yes, it's that time of year- where everyone wants to party on New Year's Eve but fears a DWI. If I wasn't a DWI lawyer, I would not know what to do, so in that spirit here are my tips based on 19 years of experience. Please be advised that different states have different laws and if you are on probation, these tips don't apply as most probations condition you fully cooperate with a DWI investigation. If you are in Texas and NOT on DWI probation, take heed. First I would like to add, that the best thing is to try to avoid putting yourself in this situation. I highly advise UBER, a cab, or a designated driver. Speaking of which, if you TRULY have not consumed too much make sure you have a portable breath test device (you can buy them in the automotive section of Walmart) in your car. Blow into it if you get pulled over, show the cop. It is one of the smartest ways of avoiding being arrested. I have a fellow Regent in the NCDD who did this. No cop wants to realistically take a .04 to the station. If you do get pulled over here are the basics:


1. You don't have to answer questions. You do have to provide drivers license, registration, insurance and step out of the car when asked.  THINK HIGH SCHOOL GOVERNMENT: REMAIN SILENT. Tell the cop "I would like to decline all questions." I would recommend you wish the public servant a "Happy New Year!"

2. You don't have to do ANY tests. Yes, they may arrest you but that does not mean you are guilty. The law is PROOF beyond a REASONABLE DOUBT. You are not obligated by law to provide ANY evidence.  The field tests are not scientific and they are designed for you to fail (much published, including the HGN). Unless you can nail them, I would not advise you do them.

3. The cop chooses breath, blood or a urine test.  If you have had one 12 ounce normal beer within the hour ONLY, you are pretty safe to blow otherwise know that there are many issues with the breath test recognized by courts that may affect you (temperature, the length of blow, etc.). If you cooperate, you have a right to your own independent blood test. Remember on most holidays, if you refuse they will get a warrant for your blood. You have the right to ask if they are going to get a warrant and to be shown the warrant.With that being said, here are some additional tips with the caveat that the best thing to do is to avoid getting in the situation as there is much grief to a DWI even if you are ultimately exonerated.

Things to DO:

1. Throw away all open containers (They are illegal anyway).  If you bring alcohol to a gathering (yes, even that expensive bottle of Johnny Walker Blue) LEAVE IT there. Throw away all empty containers. Yes, those empties from last weekend will be used against you...

2.  Leave the breath mints, tongue strips, and mouthwash at home. As crazy as this seems, most DWI cops will try to say you were "attempting to mask the odor" of alcohol.

3. Take pictures of your receipts and email them to yourself. This is your private business. Throw the real receipts away. Cops often don't return them or show up the day of trial with them. If you try to explain the receipt, it won't help prevent you from getting arrested, no matter how many people were on the tab.

4. Lock your phone with a passcode. Don't tell the officer your passcode. Even though the courts have ruled cops need a warrant to go through your phone, don't tempt fate. I have had cases where pictures of text screens were a part of the police report. Keep some numbers handy in your wallet or purse written down for "in case of emergency" so you can bond out or you may find yourself in jail a long time (some cops will graciously let you use your phone, but not all).

5. Tell your friends not to text you until later the next day. If you are arrested your phone will be in police custody. Nothing like "crazy time last night" popping up as a text as you are getting booked in. You want to value your privacy.

6. Keep your mouth closed. There are cameras in the squad cars. I can't tell you how many cases are destroyed due to unwise comments made while handcuffed in the back of a squad car. Yes, you are being taped even when you are alone! Don't fall asleep. Sure, it's late but I promise you some prosecutor will say you were "passed out" due to drinking.

7. Do not bring medications with you! Cops give DWIs on medication now, even if it is prescribed and you are taking it according to proper dosages. Some prosecutors could care less about the meaning of a "therapeutic level".  When asked if you are taking medications, you have the right to politely decline all such questions. YES, YOU CAN GET A DWI EVEN WHEN YOU HAVE NOT BEEN DRINKING AND ARE JUST ON MEDS.

8. If you got pulled over for a nonexistent traffic stop, make sure to politely ask the cop why you are being pulled over and state in nice terms how you disagree (this will get you a probable cause jury charge). Sadly, many cops will turn down the volume during this stage, so make sure to ask if you are being recorded as you can file a complaint later if they pull this one on you. Destroying evidence is serious business.

9. If you do the responsible thing and pull over- make sure it is in a parking lot and turn the car OFF. Turn off all lights and TAKE THE KEYS OUT OF THE IGNITION. The best thing to do is to hop in the back seat. Some (not all, thank God) judges will find you guilty even if it is only to have the heater on. Keep a blanket in your car. The law does not define "operation" hence the issues making each case circumstantial.

10. Be friendly and nice to the police officer but leave it at that. No need to start apologizing and start giving confessions. It won't change the arrest decision I assure you.

10+. Once in a blue moon (very blue moon, call it turquoise), a cop will ask if you have someone that can get there to get you in 10 minutes. Always try to keep an arrangement of this sort handy (yes, tell grandpa to keep the ringer on the night you go out). I'm always pained to see these rare instances of not having anyone end up in my office.

Big NO NOs:

1. If you have been drinking don't deny it. It's a cop's number one pet peeve. Regardless of how sober you are, he will take you in. You might as well have called his mother stupid- denying drinking just means the fight is on.  Remember to politely decline to answer all such questions as to how much or what you have had.

2. Whatever you do, don't say "I couldn't do these tests even if I were sober!" If that phrase pops up in your mind, don't even think about doing the tests.

3. Don't mention if you know a cop or have a family member that is a cop. Juries hate name dropping and with most cops, it won't do a lick of good. Some cops live to arrest other cops. Yes, sadly this is what differentiates DWI cops from the others too often...

4. If you refuse a specimen test and they get a warrant, don't fight it after they have shown you the warrant (which you have a legal right to ask). Resisting will get you another charge.

5. Don't get in fights at bars, I promise you - you will get pulled over for a DWI as they will be looking for you.

6. Don't get rowdy in bars- same deal. See above. Bartenders don't like to call on patrons, but believe me THEY WILL and DO.

7. If you are refused service at a 24 hour restaurant or drive through- park your car and start walking. I assure you the cops are on their way. Be sure to be polite when refused service. Arrange for someone to pick you up somewhere. Take yourself off the obvious path.

8. If you have an accident, pull over and do the right thing. Running from it will get you two charges with failing to stop at the scene of an accident being a more serious charge, one involving a crime of moral turpitude.

9. If you know you are going out drinking, leave your favorite beer shirts and other such loud non judge and jury friendly attire at home.

10. Don't challenge the cop to do the field sobriety tests (yes, they only do a measly partial demonstration compared to you). They have practiced them a gazillion times, trust me. You won't get what you are looking for.

10+. Whatever you do, don't tell the cop "I'll see you in court." You have just lost your license buddy. Some of the compassionate cops knowing the DWI will kill ya, may let you slide on the license hearing out of benevolence, plus juries don't like an ass. Please know that there is a wide political spectrum of opinions and powerful lobbies when it comes to social drinking. No one wants anyone hurt or killed on the road, but unfortunately there are plenty who don't mind responsible social drinkers getting persecuted. You don't want to be on any side of it where it involves handcuffs and your life.

Have a safe and happy new year from all of us at the Coffey Firm.  Happy 2015! May it be filled with happiness, good health and good cheer!

-Mimi Coffey, Sr.

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