DUI & DWIClients’ ChoiceAward 2012-2019

Whereas Refusing a Breath Test Implies Consciousness of Guilt

Whereas Refusing a Breath Test Implies Consciousness of Guilt

There's a double standard when it comes DUIs and exercising your rights. Refusing a breath test implies consciousness of guilt, whereas pleading the 5th and exercising your right to not incriminate yourself does not. DUI attorney Jonathan Rands and KGMI's Dillon Honcoop discuss related cases.


Episode Transcript

Dillon
The laws aren't always the same. Also the practice of enforcing the laws is not the same. Even county by county, city by city in some cases. Am I right?

Jonathan
Yes.

Dillon
Jonathan Rands, our guest. And he took a little trip down south. You celebrated the 4th of July down in Texas.

Jonathan
I did.

Dillon
Which I hear still, from time to time, wants to be a country unto itself.

Jonathan
That conversation did come up, but I tried to stay away from politics all together while I was down there.

Dillon
Of course, Jonathan Rands, local DUI attorney and an expert that we talk with frequently here on the program. And glad to have him in studio this morning. You were down there in Texas and were watching how they do the whole DUI thing down there. And it brought to mind, you're telling me, some good reminders

Jonathan
Yeah, I think so. While I was down there, and by the way, what a strange place to visit when you spend your entire adult life as a, I don't know, liberal Canadian and then become a citizen who's trying to find his way in terms of which —

Dillon
By the way, if you haven't heard, Jonathan Rands is a brand new US citizen.

Jonathan
— which party's most attractive in this year's election, you know, first time voting , and you're just surrounded by ultra-conservative republicans. It's quite an interesting culture shock unto itself.

Dillon
A culture shock to go down to Texas.

Jonathan
Very hospitable and hot place to visit in the summertime, but thoroughly enjoyed myself. But while I was there, I was reminded of these things that they do down there quite frequently. They call them 'no refusal' weekends. Texas has a DUI law, while I was there, I couldn't help myself and had to look it up in terms of what the statute says. Actually their statute's kind of crazy because it says, it defines a DUI of being DUI in any circumstance where you are, what's the word they use, they imply that — carriage — anything that is moved forward. And it doesn't use, like our statute, it doesn't talk about an internal combustion automobile or and internal combustion engine. It talks about anything that's regularly used for movement on the roadway or drawn on the roadway.

Dillon
Horse and buggy?

Jonathan
That's exactly what came to mind.

Dillon
Really? Really?

Jonathan
So it was just an observation. I looked at this statute and thought, wow.

Dillon
No sledding under the influence? I don't know how much they get wintertime snow down there.

Jonathan
They actually incorporate operation of amusement rides under the influence. It's their DUI statute as well.

Dillon
Well that probably wouldn't be a bad idea either. No comments on the carnies at the fair.

Jonathan
But so they do these things — you hear around here they have emphasis weekends, and I think there was even an emphasis weekend this past July 4th weekend. Big holidays you see the big target zero signs out in this county and counties around the state here. And likewise down there they do an emphasis, but they do a emphasis emphasis in terms of 'no-refusal' weekends. And what that means is even though you can say 'no thank you' to a breath sample, they say that's fine, but you're not going to refuse our ability to get a sample from you either of your breath or of your blood. And so they're just putting everybody on notice that if you refuse a breath sample, that means a warrant will be sought and it will be granted and your blood will drawn.

Dillon
Hold on a second, though. We have a lot to get into here, but what does that even mean then for a warrant if they're going to get it and they're going to draw blood from you? I mean, what's the point even of a warrant if it's guaranteed? Isn't a warrant something for a judge to check and make sure there's good cause for doing this?

Jonathan
As you said, laws are enforced differently all over the place, but yes.

Dillon
I wonder how that holds up to the 4th amendment.

Jonathan
Well, I mean a warrant has to be—you just simply have to establish probable cause to believe a crime occurred. So it doesn't take very much—a whole lot of detail to allege that probably cause exists. Meaning the typical warrant application tells the person, or tells the independent judge — here it's a phone call to them, the judge puts the person under oath and says, what do you got to tell me? Well, I stopped this vehicle for whatever reason, upon contact identified bloodshot, watery eyes or alcohol flushed face. The person did field sobriety test, didn't do very well on them. I asked them to give a breath sample, they said no. I believe that if we draw their blood, we're going to find there's an alcohol concentration above the legal limit. That's really hits all of the highlights. 

From an independent judicial perspective, they're like, ok, I've got not reason not to believe this. It's sworn testimony; it's first-hand testimony. I'm going to authorize a warrant. So even though it's a foregone conclusion, I think in certain circumstances, they don't always hit the mark. I have one case right now where the police officer's report indicated he applied for a search warrant and the judge said no, I haven't heard enough. Now in that particular case, they didn't have very much contact with my client. They arrived on scene of an accident; they stood from afar; they watched the paramedics, EMTs do what they needed to do. And then they decided to transport her. So they never got close to her. They never got an odor of alcohol. They never really got a good look, but they suspected. So they took this affidavit, if you will, to a judge, and a judge says, you haven't told me enough. So the officers then went on to the emergency room and had face-to-face contact with my client; made some more observations; had some more conversation, and ultimately went back to the judge, who said, now you've got enough.

Dillon
Hmm, that's interesting. That they don't just snap their fingers and say here you go on a warrant like that.

Jonathan
No. The warrant itself can be ... warrant procedures are really subject to the procedures themselves, meaning irregularities in the procedures can impact the legality of the warrant. So even though you may have said — testified — something in some way shape or form to a judge and the judge authorizes it, the warrant itself, the judge generally doesn't see. Usually what they do is they say, ok, based on what you're telling me I'm giving you the authority in the signature line to indicate my approval. I'll sign it after the fact. Nothing wrong with that. 

But interestingly enough, sometimes when I look at those warrants, the warrants themselves are defective because there's a difference between what was said, and what was provided to the judge. Another case there's usually a time limit. They tell you, the judge authorizes and extraction of a person's blood within a certain amount of time or minutes from this warrant, depending on where the location is. And if those things are violated, if you go outside the scope of the warrant, if you search in places that the warrant doesn't authorize you to, and in a DUI case it's pretty difficult, but in a standard warrant case, if you go to a person's house and you've got a warrant to search for something, you can only look in the places where that thing is likely to be hidden. Meaning if you're looking for a long rifle, you can't look in a bedside drawer that's not going to contain something like that. So there's defects that happen, not only in the paperwork, but also in the procedure, but also in the serving. 

A lot of DUI cases police officers don't ever show the person the warrant before they draw their blood. They simply tell them I've got a warrant, we're gonna go to the hospital, and away we go. They show up, they tell the nurse or the whoever the flobotomist on-call is, we've got a warrant, please draw the blood and away we go. Well, a good legal issue for me traditionally has been that they admit that they don't actually show the warrant. A lot of that come about through experience. The veteran police officers will. New police officers who are unfamiliar with search and seizure in this particular context and the necessary court rule that requires it, don't. That creates some issues for us. But again, these 'no refusal' weekends that Texas has, got me thinking about what do we do. And we really do, in one county — Skagit County — the policy from the prosecutor's office has been to advise law enforcement that if they arrest somebody for DUI and that person refuses, and they know that that person has a prior DUI specifically within 7 years, but even within a lifetime, then they're telling them to go through the warrant procedure. So they sort of have this informal 'no refusal' —

Dillon
Kind of like what you're telling us from Texas.

Jonathan
Right. So it's not —

Dillon
The difference in Texas, though, is it's weekend by weekend when they're doing an "emphasis"?

Dillon
Yep. And it's broadcast, or advertised is the word I'm looking for. Hey, we're going into a 'no-refusal' weekend. You don't have these roadside signs as soon as you cross into Skagit County that says, if you're second offense, it's no refusal. But you're right in that there are some interesting dynamics that you think about when you go, ok, I'm in a no-refusal county, how does that impact things? And really, the no-refusal thing has two prongs to it, which are impacting a person differently. Meaning you still have an absolute right to refuse a breath test sample. In fact, you're told that. And I'm not quite sure how Texas deals with this. I don't think Texas implied consent law is exactly the same as ours. And the implied consent law is the law that allows the Department of Licensing to act upon a person's driver's license in this state. So even though — and you're told, you have the right to refuse this breath test — you're also told you have a right to seek an independent test by a person of your choosing. You're not told that as a consequence of refusing it's possible that a warrant will be sought.

Now the question becomes — now, that's because everybody worried about, well, is that coercion? Just because a particular legal consequence flows from a decision that you make, doesn't mean that the person in the implied consent setting needs to be advised of every single possible ramification. You need to be advised of certain things. License ramifications, length of time, and these lengths of times that you're advised of in the implied consent warnings is actually a minimum. At least 90 days. At least one year. And you're also told that — you're advised that you have a right to refuse and that refusal may be used in a criminal trial. So there's this setting where you're told that you can do things, and a lot of people are kind of shocked to say, alright, well, I'm going to exercise my rights, I'm going to say 'no thank you', and then the next thing they know, they get a letter from Department of Licensing that says you're going to have your license revoked for at least a year. And then you're now being told by criminal defense attorney that you sit down and talk with that not only are they going to charge you with DUI, but you're alleged to have refused, and that refusal may be used against you. And since they went and got a warrant, there is the possibility that that refusal argument they have is even stronger. Meaning refusal is usually deemed consciousness of guilt. Meaning that a prosecutor in a trial will frequently argue that you were told that you had a right to refuse and you did refuse, but you didn't refuse because you had a right, you refused because you were hiding something. And then the one-two punch comes about if that happens and you're blood test shows you being over the legal limit, then they have the ability to make that argument by saying, see, we told you.

Dillon
See, that always bugged me and I know it's not exactly the same thing, but I always compare that to the 5th amendment. If I say no, sorry, I'm not going to make a statement on whatever, that's my right to remain silent, but then is it immediate interpreted that well, you must have something to hide.

Jonathan
No, in the 5th amendment setting, it's very very clear. And in fact, in any setting it's clear that it can't be used against you.

Dillon
But shouldn't it be, though, with one of th—I mean again, it's your right to refuse, so why can it then be turned around and used against you?

Jonathan
Ask the Supreme Court. Because it's this interesting, what we call, the DUI exception to the constitution. Meaning that there are charges where when you look at the case law, and you look at the interpretation it's stands out that DUI is this tiny little niche where they find exceptions, where in any other case, you're absolutely right. They structure decisions by saying, well, it's non-testimonial and therefore refusal is not covered by the 5th amendment, nor are field sobriety tests or refusals. We could do hours on this problem that you've picked up on right away just in terms of seeing this particular scenario. We gotta go to commercial?

Dillon
Yeah, we gotta go to a quick time out. Jonathan Rands, local DUI defense attorney. Jonathan Rands at Law. Isn't that the official name of the business? 

Jonathan
Yes.

Dillon
Jonathan Rands at Law. jrandslaw.com.

Jonathan
Attorney. Attorney at Law.

Dillon
Attorney at Law. That's right. His office is there in Fairhaven. Just moved kitty-corner to where he had been. What's the name of that building that you're there in now?

Jonathan
It's the brick one ...

Dillon
The brick one. Right on the corner of 12th and Old Fairhaven Parkway. I definitely suggest you get in touch with him if you have a situation of your own. Or even if you have questions; you're just curious. Maybe you know someone else. Jonathan Rands is the person you want to talk to. (360) 306-8136 is the phone number to reach his practice. I'll repeat that in just a moment. And I mentioned it a moment ago as well, his website is jrandslaw.com. Rands is just simply spelled r-a-n-d-s. Is his last name. Jonathan Rands, so j, just the letter j-r-a-n-d-s law l-a-w jrandslaw.com. Check that site out, and as promised the phone number again (360) 306-8136. And a quick time out. Be back with more with Jonathan here in just a moment.

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Dillon
We continue here on The Legal Docket. We started talking about Texas. And DUI defense and the practices in the state of Texas. Jonathan Rands our guest, and he'd recently been on vacation to the state of Texas. We got into this, though, this issue of when exercising your rights can be used against you. Is that a fair summary of, I guess categorically, what we're talking about here?

Jonathan
I think so.

Dillon
As far as someone who refuses a breath test. You know you refused to say something under the 5th amendment, the shut up amendment. You know, I'm going to plead the 5th, as some people say. That's not supposed to be used against you. But if you refuse a breath test. That will be used against you in some cases in court.

Jonathan
Let's say, it can be used against you. Will seems to indication a positive, or a 100% —

Dillon
That's why I said some cases.

Jonathan
Semantics, right? Tomato to-mah-to.

Dillon
I would never make it as a lawyer. Semantics just get me.

Jonathan
Yeah, absolutely. You have a — any time you exercise a right, you are essentially shielding any comment about that right. Hey, I want to talk to a lawyer before I answer any of your questions. 

Dillon
Oh, you must be guilty. You want to talk to a — no, you can't do that.

Jonathan
And that's why the, in a trial, a jury is not allowed to hear about a person who exercises their rights. It can be construed erroneously that a person is hiding something. You hear the term 'they lawyered up', meaning that a defense lawyer came in and interfered in some way, shape or form, rather than being presented in a what that he exercised his constitutional rights and as a result we were unable to discuss freely with him the things we wanted to talk about. So there's a case coming out of the Supreme Court. It's been pending for quite some time, over a year now, and the defendants. There are two of them, and there's two situations that the Supreme Court is making a decision on in two different cases, and it has to do with breath testing. The name of the case is Baird-Adams. And in the Baird case, I believe, I get the names mixed up. But that facts are that that person said, no thank you to a breath test. And the argument to the trial court was, you've asked my client to consent to a search. Everybody agrees that a breath test is a search. It's a search because you're exhaling air, which is inside your body, into a machine, it's being analyzed and it's unquestionable agreed all-around, this is a search. So the question becomes, is a refusal to allow somebody to search you, and is that fair comment? So there's a case out of the Supreme Court, Arizona vs Prescott. And it was a State of Arizona case, either Mr or Mrs Prescott was home alone, or home, and there was knock on the door, and they said, we'd like to come in and search your premises. And the person said, no, you need a warrant. So they said, well, we can get a warrant and we'll come back with a warrant. Prescott said, please do. They came back. Got a warrant. They said come in. In that case, they commented, first they showed up with no warrant, and the Prescotts said, go get a warrant. Supreme Court of the United States said, you can't do that. It's an exercise of a right, you're were asked to be searched voluntarily, you exercised your right to force them to go get a warrant and search involuntarily, and you're not allowed to comment on it. So why is there any difference in any other kind of search? And that was what they call a 'knock and talk'. 

And now we're in the DUI context in this particular states, and that's really the foundational case, if you will, of not being able to comment on the person's exercise to say 'no thank you' to a search. So we're waiting on a decision from the Supreme Court on whether this refusal to allow them to search is in fact something that can be used against you. Now in the Department of Licensing context, because you don't have constitutional protection because you're not operating in the criminal realm, you're operating in the civil realm, and you're talking about a licensing aspect of being, a licensing revocation rather than facing jail time. Sure, they're going to be able to use a refusal to suspend a person's driver's license, or revoke a person's driver's license. But is it going to be found proper and legitimate to comment on a person's exercise of a right? Because they are voluntarily asking you to search. They're saying voluntarily blow into this breath test machine. And a person has always been able to say, in common law going all the way back to this decision, it was really solidified in 1983 or something like that. So it has a fairly long pedigree. It'd be interesting to see what that decision is and every Thursday, we're waiting to see if it comes out.

Dillon
Yeah, that's right. In here at work on Thursdays and all of a sudden all kinds of breaking news out of the Supreme Court. Jonathan Rands, local DUI defense attorney. And I mentioned it before, I'll mention it again in a moment, his phone number, so you can get in touch with him. He's been practicing around here for a long time. And he's got an excellent website; I can't recommend that enough — jrandslaw.com. It's just a huge source of all kinds of information about his practice and just about DUI and DUI defense in general and how it works. jrandslaw.com and as promised, the phone number is 360 because it's in Bellingham, of course. That's our area code here. 306-8136. It's making me almost dyslexic there just a little bit 360 306 8136.

Jonathan
Wait until you see my fax number.

Dillon
Don't even tell me that. It will just confuse me. Thanks for being here this morning.

Jonathan
Thanks for having me.


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“Jonathan, thank you for bringing the best possible outcome today in my case. It was a humbling and very sobering experience and I am mindful everyday of my personal responsibility and actions and those around me. My career has taken off and I’m glad to have this chapter behind me and will move onward past probation!”
Julie
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