Driving Under the Influence

Your Rights Once Arrested

rights-once-arrested

Increasingly, I am asked what I should do if and when I am arrested. This is a complicated issue, but let me explain the primary concepts; regardless of whether you are white or a person of color. This article is more detailed than most of my others, so take your time and read it thoroughly. Your freedom might depend on it! In short, KNOW YOUR RIGHTS.

Initial Actions

When stopped by a police officer, keep your hands in plain site; preferably on the steering wheel. Take a deep breath as the cop arrives at the window and be as courteous as you can be. Cops are trained to be friendly on these stops and most are, so provide that respect back. Do not be sarcastic or mean when asked why you were stopped.[1]  If you have a gun or hunting knife in your vehicle, announce clearly when the cop arrives at the window that you have the weapon and in the case of a gun, a valid CCW Permit[2]. Hopefully this is true.

Plan ahead for this and have your ID, proof of insurance, and car registration readily accessible.  If you go to the glove compartment to retrieve these items, move slowly and narrate your actions to the cop as you go so there are no surprises. If you lack of one these documents, explain to the officer why.  If you license is under suspension, hopefully you will have a good reason why you are on the road, e.g., going to hospital due to a family emergency, etc.

The 4th Amendment

If the officer asks you to exit the vehicle, exit the vehicle. Need be you can attack the constitutionality of this request later. For now, do what is being asked. Case law is clear that government representatives generally have wide ranging rights to inspect or search your vehicle since vehicles can be driven away and hidden. Any part of the vehicle that is not considered a separate and locked compartment can be easily searched.  If you have a separate, locked safe or compartment in the vehicle, the cop must impound the vehicle and get a search warrant based on probable cause to access the locked compartment. You can ALWAYS challenge the constitutionality of the search under the 4th Amendment of the Constitution, administered to Ohio via the 14th Amendment. DO NOT try to argue this matter while at your vehicle. It will not end well and chances are the police officer will not be equipped to deal with the legality at that moment anyway, even though they are trained in this area at the Academy (we hope).

Search and Seizure and Terry Stops

If evidence is seized from the vehicle, it is important whether you are arrested or not.  Search and seizure incident to an arrest is easier for the State to defend than an “expedition mission” without an arrest.

As for your person, cops are always allowed to do a Terry Stop[3]. The search must be “reasonable” as legally defined, and limited to safeguarding the police officer/s. Excessive searches can lead to suppression of any weapons or other evidence searched and seized in a latter hearing.

Miranda Warnings

As for questioning, you can be arrested without being “Mirandized”.[4]  However, once you are “in custody”, you must be read your rights BEFORE being questioned.  If not, whatever you say can and should be suppressed and thrown out. Furthermore, any evidence found or produced after an illegal, custodial interrogation (be it at the car, in their car, or at their station)[5] can be challenged as “fruit from the poisonous tree”[6] and suppressed as well.

It is never a bad idea to provide NO answers as to the evidence or alleged offenses while you formally and audibly, yet respectfully, request a lawyer. This is your legal right and does not indicate that you are guilty of anything. An elderly family member once told me “…if I have nothing to hide, why should I not just answer questions right away”. Though innocence is presumed, not all cops are honest and they can openly lie to you to gain insight into a case. Sadly, as a defense attorney, I tell my clients to assume that the cops are not your friends in these specific instances and to SHUT UP until we get involved. Plus, though our Constitution is under attack right now, we must know and defend the Bill of Rights and our protections under the law.

This is but a thumb nail sketch of your rights and our suggestions on your expected behavior.  Be courteous, know your rights, and protect those rights so that your lawyer can provide the most effective representation to you down the road. We will add more detail in future articles. Feel free to contact me directly or chat with my staff on-line at www.bambergerlaw.com.



[1] Realize that a cop can stop you for pretty much any reason they choose; speeding, driving erratically, broken light, etc.  Your chances of getting charges thrown out merely on the probable cause for a stop is unlikely.

[2] In Ohio, you can transport a gun in your vehicle without a CCW, but in that case the ammo and gun must be kept in separate parts of the vehicle and not in easy access to the driver.

[3] This right is based on the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), which allows government representatives to search your person reasonably to protect themselves against potential ambush or attack. This is in contrast to such programs as New York City’s Stop and Frisk, which was deemed discriminatory based on racial bias.

[4] Miranda v. Arizona, 384 U.S. 436 (1966) mandated the reading or your rights to remain silent and to legal counsel prior to formal custodian questioning.

[5] The concept of being “in custody” is a complex one, but as a very general rule, if a reasonable person would not feel the ability to simply walk away from the government agent/s, that person should consider him or herself “in custody” and therefore due related constitutional rights under the 5th and 14th Amendments. Custody in this context is synonymous with restraint of liberty and does not necessarily mean actual physical imprisonment.

[6] There is an extension of the exclusionary rule established in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). This doctrine holds that evidence gathered with the assistance of illegally obtained information must be excluded from trial. Thus, if an illegal interrogation leads to the discovery of physical evidence, both the interrogation and the physical evidence may be excluded, the interrogation because of the exclusionary rule, and the physical evidence because it is the “fruit” of the illegal interrogation. This doctrine is subject to three of important exceptions. The evidence will not be excluded (1) if it was discovered from a source independent of the illegal activity; (2) its discovery was inevitable; or (3) if there is attenuation between the illegal activity and the discovery of the evidence. Wong Sun v. United States, 371 U.S. 471 (1963) is the seminal case that allowed “poisonous fruit” evidence to be suppressed.

Well That Blows!

Mark J. Bamberger, Esq., Owner/Attorney and Counselor at Law
The Mark Bamberger Co., LLC

The police lights flash in your rear-view mirror. You tense up and feel your heart starting to race. Not again, you curse under your breath. Your mind races back over the past few hours and the number of drinks you had. Am I OK? Did I drink too much? How long ago was that last drink? It is natural to feel this way, even if you were doing nothing wrong. However, you might have to decide quickly on your course of action. Now, like all lawyers, we caution people not to drink any alcohol or consume any mind-altering substance and then drive. Hey, my family might be out there with you!
The question of whether to take the field sobriety test, which usually includes a “blow test”, is one that we get a lot. The answer is more complicated than you might think. There are attorneys that say never blow. Some say always blow. In fact, you need to consider your specific situation. As a general rule, many judges and courts make it harder on people to get what are called “driving privileges” should you get arrested if you refuse the test. “Driving Privileges” mean that even if you are charged with a DUI, you can get permission to drive on a limited basis, say to school or work or for family events, until you are allowed to get your license back.

The problem with refusing to blow, which by the way is your constitutional right, is that you are then presumed to be over the 0.08% limit and guilty. It is also true that in Ohio the fines and penalties grow the more you are over that limit. If you think you might well pass, a general rule is to take the blow test. You might indeed pass and even if you are over you might be only slightly over. If you know you will fail, leaving my guilt trip on you aside, the decision whether to blow or not to blow is a judgment call. Refusing might be better since they might assume you are less impaired than the data might present.

Again, don’t drink and drive, but regardless, know your rights and options. The Mark Bamberger Co., LLC does a lot of this kind of work and is at your assistance, should need representation in the SW Ohio region or federal court.

DUI Lawyers – Here when you need us

Competent DUI Lawyers

If you or a family member are currently facing a Driving While Intoxicated charge, you may require the specific expertise of a competent DUI lawyer to guide you carefully through the drunk driving judicial process.

DUI Lawyer
Drinking and Driving

Drunk driving, DUI and DWI are common words in our every day speech, which should tell us about the extent of this growing problem. DUI defense council will tell you that the term drunk driving has many official names including, DWI (Driving While Intoxicated), DUII (Driving Under the Influence of Intoxicants), OMVI (Operating Motor Vehicle Intoxicated), and OUI (Operation Under the Influence), and similar acronyms OWI, DUIL, DWUI. For our use going forward, DUI (Driving Under the Influence) will be used. Thankfully, you’ve found the legal professionals to assist you through your DUI proceedings.

Skilled DUI Attorneys

Certainly, hiring an experienced DUI lawyer is your best decision and ought to be your first move after being charged with this crime. DUI is a serious infraction in the State of Ohio with extreme consequences for everyone involved including drivers and victims. Each year in the United States an estimated half million people are injured in DUI-related highway crashes, costing taxpayers over $122 billion dollars.

Your DUI lawyer should be expertly familiar with all the intricacies and nuances involved with DUI offenses in the State of Ohio. As a DUI offender may face immediate loss of their driving privileges, vehicle impoundment, fines, house arrest or prison time due to drunk driving accusations. The Mark Bamberger Law Co.  defends dozens of DUI cases each year, let us help you through yours.

Take action now!

If you have been charged with a DUI , preparation, knowledge, and an excellent DUI attorney are among your best defenses. If you have been charged in a Miami County or Montgomery County court of law, the law offices of Mark Bamberger offers a number of capable and experienced DUI attorneys to defend you.

Contact Mark Bamberger today Toll Free at (877) 644-8181 Don’t let your DUI get out of control or out of hand. We can help!!

Our offices are located at 8 S. 3rd Street in Tipp City, Ohio. We also have an office in West Chester at 9075 Centre Pointe Drive, Suite 450 and in Downtown Enon at 41 E. Main St.