Usually, when a person is arrested for DUI/OUI, the night becomes a complete blur of events, and their mind is not focusing on what is happening, or what they are being told. They only think of the potential consequences. This, of course, is understandable given the stressful, life-altering events that are playing out before him/her. But it’s important to pay close attention to what the police officer is telling you, and to read every piece of paper you are given. This is true for several reasons. The obvious, of course, is that the more information you can give to your attorney, the better prepared he/she will be to defend you. Also, if you don’t pay attention, you may be missing out on some important rights.
A person’s right to remain silent is still the biggest one of all. The less information you give to the officer, the better. This doesn’t mean that you should refuse the biographical questions he asks you during booking (name, date of birth, address, etc.), but rather it is best to not “volunteer” any information. This information generally includes a background story of the events of the evening. Stories like that can come back to bite you later.
Another right that often gets missed is what, in Massachusetts, are called your 5A Rights. Simply because you submitted to a breath test does not mean that the breath test is the final say in the matter. Under MGL c. 263, s. 5A, a person arrested for OUI has the right to have an immediate, independent examination conducted by a physician. The officer in charge of that shift must afford a reasonable opportunity to that person to exercise this right. This is because there is evidence in that person’s blood stream that is being metabolized by his/her body with every passing minute, and the difference of a few minutes or an hour could make the difference in admissibility of your evidence. Bear in mind that the Case law is all over the place with what it means to afford a “reasonable opportunity,” but the key point to remember is that the police are forbidden from impeding a person’s exercise of this right, because it must be requested.
Some rights are not exactly rights; rather they are choices that come with consequences. I am working with a client who refused to cooperate with any field sobriety tests when he was stopped for OUI. He also refused to give a breath sample when asked. He informed me that this was his “right” to do so. This statement, at best, can only be considered partially true. As Isaac Newton once pointed out, to every action there is an equal and opposite reaction. While it may give strategical advantages to your attorney if you refuse any tests, there is a consequence for that choice. Your driver’s license is a privilege, not a right. Massachusetts, like most states (if not all), has a statute that requires the registry of motor vehicles to immediately suspend a person’s driver’s license for a period of time if he/she refuses to perform field sobriety tests or refuses to give a blood/breath sample. This suspension is on top of any suspension you may receive from the court if you are found guilty or come to a plea agreement.
If you have been arrested for OUI, or some other offense, there will generally be a list of rights that are available to you. Be sure to ask your attorney to explain your rights to you. After all, the only person who has rights is the person who knows what those rights are.
North Andover Criminal Law Blog 