Catch 22

We all know that failing a field sobriety test is evidence against you. The Massachusetts Court of Appeals reminds us that passing one can be too.

At a DUI trial the prosecution has to show that you were intoxicated and that you were driving. That’s two separate facts. It’s not DUI if you’re not driving. The definition of driving is broad. Being alone in the car counts as driving. It is not limitless. What if you’re in a group of people standing on the sidewalk gawking at a wrecked car? Were you driving?

When the circumstances are ambiguous the driver can be whoever the police pick out to perform sobriety tests.

The appeals court wrote last year, following an older case by the Supreme Judicial Court, “Tellingly, the defendant cooperated with Eng’s counting backwards test.” Agreeing to perform a field sobriety test was a confession of guilt.

If you give in to the demand to take field sobriety tests, you admit you were driving. If you refuse to take field sobriety tests, some states will consider that an admission you were drunk. If you’re standing near the scene of the crime, obviously you were doing so because the hit-and-run law requires the driver to remain at the scene. If you walk away, the jury will be told that fleeing the scene is “consciousness of guilt.”

So you’re in a group of bystanders gawking at an accident and the police officer demands you perform. Should you? In some states, agreeing is a confession. In other states, refusing is a confession. Maybe you lose either way. Do you know your state’s law?

You can’t ask a lawyer for legal advice while you decide. Under the DUI exception to the constitution, convictions are more important than rights.

In some states convictions have been upheld when a police officer ordered a drunk to move his car then arrested him for DUI. Again, you have to make a split second choice. Do I risk being arrested for disobeying a police officer, or for drunk driving?

All this is part of the reason I don’t take DUI convictions seriously. Half of the convicted defendants are dangerous drivers. But which half?

The opinions expressed in this post belong to the author and do not necessarily represent those of the National Motorists Association or the NMA Foundation. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

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