Sadly, most people do not know their rights and it is up to you to invoke these rights. Most Nevadans do not know what their rights are when stopped or how to respond to law enforcement while invoking these rights.
One of the most common situations where you will be stopped and confronted by law enforcement is a traffic stop. These could be a result of a simple traffic violation or even a DUI/DWI check point. However, no matter why the police stopped you, you still have rights that need to be invoked by you whether you are innocent or guilty.
We all know the saying, “you have the right to remain silent,” but rarely does a person stay silent. If you are driving, Nevada law requires you to have a your driver’s license, registration, and insurance. You will need to show these three things. You do not need to answer any questions.
Once you start opening your mouth or responding to law enforcement’s questions you are putting yourself at risk and not affording yourself the protections of the 5th Amendment. You have the right to remain silent and a right to an attorney. It is perfectly fine for you to say, that you will not make any statements, nor will you do any Field Sobriety Tests. Silence alone even after your Miranda rights have been read does not indicate you are invoking your rights and law enforcement will continue to question you hoping that you will eventually break and make a statement.
You must state, “I’m invoking my 5th Amendment rights and I will not answer any questions until I have spoken to my attorney.”
Until you have clearly stated that you are invoking your 5th Amendment rights, law enforcement will say anything to get you to speak or make a statement, even sometimes after you say you will not answer any of their questions and want your attorney. They may even get angry, make promises or threats; but do not give in, even if they decide to arrest you.
This may be a likely scenario if you refuse to answer questions regarding drinking and driving. In Nevada, you can refuse to do field sobriety tests and preliminary breath test (a small handheld Breathalyzer machine done at the arrest site.)
Your refusal will not please law enforcement and can lead to more questions and threats. Without making statements, admissions or doing field sobriety tests, the police may not have enough probable cause to arrest you for a DUI/DWI. However, law enforcement still may arrest you even though they do not have enough probable cause; this is why you fight against such unreasonable search and seizures in court.
Once you are arrested, you should request a Breathalyzer test over a blood test to be done at the police station. Your choice should be a Breathalyzer test.
You may also hear law enforcement ask if they may search your car. If they ask, say “I do not consent to any searches.” The 4th Amendment protects people from unreasonable searches and seizures, but if law enforcement gets your permission to search your vehicle, belongings, or person, then you give up your 4th Amendment protection. Do not sign a consent to search form.
A good example can be found on YouTube on how to invoke your rights during a traffic stop with law enforcement. However, how law enforcement reacts may vary and this is a good example of law enforcement respecting, after a few tries, your rights and allowing you to go on your way. In fact, you should search the web for traffic stops to get an idea what it is like to interact with law enforcement.
Here is a list of things to know if arrested or questioned by law enforcement during a traffic stop:
1. Always be polite and respectful to the police officers.
2. If detained for a DUI, politely REFUSE to do ANY field sobriety test or on scene breath test (this is the small portable device, NOT to be confused with the Breathalyzer machine at the jail or in the van).
3. DO NOT answer any questions about alcohol consumption. It is best to stay silent about any and all facts of your case.
4. NEVER consent to any search of your vehicle, home or person.
5. While in custody, DO NOT discuss your case with anybody in the jail; they may be informants.
6. When you are released, NEVER make any contact with the police, District Attorney or Investigator without first consulting your attorney. These people are not here to help you.
7. DO NOT try to make any deals with the police. They can and will lie to get you to confess to a crime with the promise that your case will be dropped and/or that you will be released from jail. DO NOT believe them!
Remember, there is no way to predict how law enforcement will react; they might respect your rights or they might threaten you, make promises, or lie to you in order to get you to incriminate yourself. Politely refuse and know that you may be going to jail, one way or another, but at least your constitutionally protected rights will be there to use as a defense.
If you feel your rights have been infringed or you were unjustly arrested or charged with a crime, contact the Law Offices of Garrett T. Ogata, an experienced DUI Lawyer for more information on your rights during traffic stops.
