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Ask Our Lawyer - February 2007


How to Get Your Stuff Back from the Ex.

Q:My kids are driving, their friends are driving. I am getting nervous about the possibility that they will get stopped by the police when they have had a drink or two. Can you give us some advice to pass on to our friends and family as to our rights in that circumstance? Is the criminal justice system out to screw us?

A: It is legal for adults to drink and drive - up to a point. While it is not our purpose in this response to help impaired drivers get off the hook, we do want our members and their family members to know their rights when stopped by the police and asked to perform certain tests and answer questions. It is our purpose to advise innocent drivers as to the rights our Constitution guarantees them. What do you say when the officer asks if you have been drinking? Do you blow in the portable breathalizer when requested? Do you take the field sobriety test? Remember, the 4th Amendment bars unreasonable search and seizure and the 5th Amendment, which says we have a right not to incriminate ourselves. Guess who is always arguing that those rights should be limited or that there is a loophole that permits them to ignore those rights?? The POLICE AND THE PROSECUTORS do this all the time. These guys are clever. They usually will tell your kids or you that if you cooperate you will be on your way. Never believe them. If you flunk any of the requested tests [portable breathalizer, or the field sobriety test] the police then have probable cause to make an arrest. The field sobriety tests are very subjective. The guidelines for the field sobriety test are published by our friends (?) at NHTSA. Try counting backwards from 103 to 68 at midnight, while under arrest, (often at the side of the road with traffic whizzing by) or try standing on one leg with the other raised with your arms at your side. I can't do that now and I'm not nervous about a police officer with a flashlight in my face making various and sundry implied threats.

Since 50 states means 50 different laws, it's impossible to make statements that would apply everywhere. In general, though, you should remember that many, if not most, states have "implied consent" laws, which state that a licensed driver in that state has, by virtue of having a driver's license, consented to a breath, blood or urine test to determine if the person is intoxicated. However, the consent does not, in some cases, extend to field sobriety tests, and may not include the portable breathalizer of the type found in most police cars. In those cases, you are within your rights to insist on taking the chemical test at the station. However, you may not be allowed to consult with an attorney prior to taking the test. Refusing the chemical test generally results in a lengthy license suspension.

As an illustration, let's look at some of the laws in Illinois. Under Illinois law, a person who holds an Illinois driver's license has been deemed to have given consent "to a chemical test or tests of blood, breath, or urine." (625 ILCS 5/11-501.1(a)) Refusing to take the chemical test will result in a suspension. The officer may also, prior to an arrest, request the person to take a preliminary breath screening test using a portable device. However, "the person may refuse the test." 625 ILCS 5/11-501.5 (a) There is, however, an important exception to the ability to refuse the preliminary breath test. According to 625 ILCS 5/11-501.6 (a), a driver who has been involved in a personal injury or fatal motor vehicle accident "shall be deemed to have given consent to a breath test using a portable device." Failure to take the breath test will result in a suspension.

When you see the red lights come on and you are pulled off to the side of the road - treat this moment as the beginning of a criminal investigation. This is serious business. If you have had a couple of drinks and are obviously not impaired, insist on being taken to the station for the administration of the legal or certified chemical test (often a breathalizer, but it can also be a blood or urine test). In many instances, if the officer can see no obvious sign of impairment during the stop, he will simply let you go. He will know that he is wasting his time. This is particularly true if the reason for the stop was a minor traffic offense, or a vehicle defect [example, tail light out] and not related to any observable driving deficits. Also, remember that the threshhold for drunk driving keeps getting lower. In most states, the limit is now .08 for adults, and some states have much lower limits for those under twenty-one, some as low as .02! For example, in Illinois, if a driver under the age of 21 tests greater than .00 (no, that's not a typo) the driver will be suspended. (625 ILCS 5/11-501.1 ©) Guess what: If you hand them evidence by failing the field sobriety tests, and you blow over a .05, the cops have the discretion to charge you with drunk driving. Remember, these are the guys that are in a contest to catch fish like you.

Why do we suggest requesting the chemical test? There are several reasons. First of all, officers who have a suspicion, but no evidence of intoxication (such as reckless driving), may opt not to go through the difficult process of taking a driver to the police station and administering the test. Also, the time delay may work in favor of someone who may have had a couple of beers by allowing some of the alcohol to work its way out of the system before the test is administered. On the other hand, depending on when those beers had been consumed, the time delay may allow the alcohol to reach maximum concentration. Finally, other factors, such as fatigue, illness or physical condition may render false positives in the field sobriety tests that would not present issues to a chemical test.

I believe that certain organizations have caused the pendulum to swing away from our rights. Many are being arrested and do not have the funds to fight City Hall, which is all about pleasing certain vocal groups that have become more punitive. Certainly, we all want impaired drivers off the roads and punished accordingly. My wife, my children, my friends would obviously be affected by the same impaired drivers that effect everyone else. But we do not want innocent young drivers convicted of impaired driving when they are not impaired and cannot afford to fight. It is my belief that as many as 25% of impaired driving convictions are the result of a contrived and loaded system, loaded against us citizens.

Should it stick in my craw that drivers are handcuffed and taken downtown for a test when they are not under arrest and have not been convicted of a crime? These stops are with upstanding citizens who have rights and usually have done nothing in their life but work hard, pay taxes, and strive at being exemplary citizens. I say they have a right not to incriminate themselves, they should not be subject to unreasonable searches, and they shouldn't have to walk the line, stand on one leg, and count backwards. [An interesting trick of cops is to have you say the alphabet and stop at M. We all know that when you were taught in school, you stop at N - you can't help it. Try it for yourself and you'll see what I mean.] Cops use this tendency against us to get probable cause when they have none. Don't hand it to him. Just say, if you have probable cause, arrest me. If you want me to take a breathalizer, take me to the station and do a legal one. Also, be sure and check to see if the operator and machine are certified. Most are using the Data Master 5000, and the operator must be certified as well as the machine. They may or may not give you the information at the time of the arrest, but you can get this information later.

If your kid is arrested and charged, always get a copy of the videotape of the traffic stop and chemical test before they destroy it. The pendulum has swung away from our Fourth and Fifth Amendments of the Bill of Rights, and its high time to swing it back with the assertion of those rights. In this draconian atmosphere, groups like MADD and others give awards to officers with the highest fish count - kind of like a bass tournament.


The Motorcycle Riders Foundation reports that it is continuing to monitor the changing situation in Washington these days. The MRF is aware of concern among its members and rights activists nationally over legislation by Speaker Pelosi that may adversely affect their ability to lobby and possibly erode rights to free speech. The MRF reports that they are disturbed with what is being floated in the Washington rumor mill, but will wait until the rumors become legislative proposals before commenting. We'll keep you posted.


The great state of Montana has long been a FREE state, and with your assistance, A.B.A.T.E. OF MONTANA intends to keep it that way! Montana State Representative Betsy Hands is sponsoring legislation to introduce a mandatory helmet law in Montana that would eliminate FREEDOM OF CHOICE when you ride through Montana. A.B.A.T.E. OF MONTANA has asked that individual riders from across the country contact Rep. Hands now, and let her know that limiting your rights riding through Montana lessens the likelihood you will ride to Montana. Remember to be respectful in your correspondence. Please copy libaldwin@midrivers.com with your comments so that she can copy them to other interested individuals and groups in Montana.


The American Motorcyclist Association (AMA) is hosting a Washington, DC Ride Into Political Action seminar for motorcyclists who want to learn how to influence governmental decisions, whether in Congress or in their local communities.
The seminar, to be held February 24-27, 2007 at the Phoenix Park Hotel in Washington, DC, allows participants to meet and learn from the AMA's Washington staff as well as other political experts. Besides learning about state and federal issues facing motorcyclists today, participants will get tips on building relationships with government agency officials and lobbying elected officials. The instructors will also prepare participants to meet face-to-face with members of their own congressional delegations.
A registration form is available in the American Motorcyclist magazine or by contacting Sharon Smolinka ssmolinka@ama-cycle.org. Mail the completed form to AMA, 13515 Yarmouth Drive, Pickerington, OH 43147. For more information, contact Sharon Smolinka at (614) 856-1900, ext. 1252.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services