Test refusals and misconceptions

I was out watching a Cubs game the other night, and made insta-friends with some other guys at the bar. (Chicago sports fans tend to bond quickly over shared heartbreak.)

During a commercial, one of them started playing with his coaster, which was placed there by a DWI attorney and advised strongly the basic things that we advise everyone we talk to about the subject – namely, keep your mouth shut and refuse all tests.

One of the guys kinda chuckled when he read aloud, “You have the right to refuse all breath and blood tests”. “Yeah,” he said, “You have the right, but it’s a terrible idea.”

Which caught my attention, because I know that it isn’t. But I’m not a lawyer, and I’m not a drinker, so the rules and choices surrounding DWI weren’t ever things that popped up on my radar before I went to work for Sumpter & Gonzalez. I guessed, though, that I might have assumed the same thing if it’d come up before I took this job. So I asked him why he thought it was such a dumb thing to do.

“If you refuse the test, you can’t prove that you’re not that drunk. You’ll definitely get arrested that way.”

Yow! Not great to hear. For a long time, part of my job here was to review and write summaries of nearly ever DWI client’s arrest tape that we got, and this sort of thinking is so frustrating and, after a while, embarrassing to watch. I’ve seen a zillion – seriously, a zillion – tapes that involve the person being pulled over trying to negotiate in this way.

Yeah, I had a little too much, but I’m really not that drunk. Nah, I’m sure you’re right, I probably screwed up a little… I’ll do whatever you say.”

And every one of those zillion goes to jail. Even when they blow way under the limit, they don’t get un-arrested.

But there’s one tape I watched where the client did nothing but stand with her head down and arms at her side. The officer starts asking her questions, and she answers about the first two, then says that she’s not going to answer any more. The officer asks her why not and what she’s so afraid of, and she says that she’s pretty sure that he’s investigating her for a crime and plans to arrest her, and she’d like her lawyer present. He just kind of stares at her with this look on his face that says, “You sunk my battleship!”, tries to ask her more questions, and is totally flummoxed when she answers each with, “I’m not going to answer that.” There’s no more that comes from the encounter than that, and sure enough, he did arrest her, just like the guys at the bar thought.

But they arrest everyone they think is driving drunk. The difference is that she was released, her case dismissed, before the charges were even filed. The other zillion have to fight these things for months.

And I know it’s a sticky issue, to talk about DWI this casually. Like I said, I don’t drink, so I’m not arguing from a place that says, “I should be allowed to drive around wasted if I think I’m okay!” And, while I’ve never lost anyone to a DWI-related accident, I’ve got friends with “I ♥ Handsome Joeltattoos. One of the first things I had to learn to make peace with when I started this job was reconciling that wanting people to be informed about their rights, and wanting those rights protected, isn’t the same as dismissing possible crimes as unserious.

But in a world of forced blood draws and no-knock warrants, I guess I’m luckier than the other Cubs fans at the bar, because I’ve been in a position to see what happens when people don’t even protect their rights for themselves.

(images via flickr)

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