Can you beat my DWI and Refusal?
Possibly yes. One of the best ways to clear our clients of all charges is to suppress the evidence against them if the stop, search, or arrest is illegal. If we can show a violation, then the evidence can be suppressed and the charges dismissed.
Supreme Court Justice Brandeis said in Olmstead v. United States:
Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. … If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
The government is not allowed to violate your 4th Amendment rights.
What is the 4th Amendment?
The 4th Amendment, part of the Bill of Rights, of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Amendment prohibits the government from unreasonable search and seizures. In a DWI context, seizures include traffic stops and arrests. Also, police cannot search you or your vehicle without cause.
What happens if the police did violate my rights?
It depends on what right they violated. One of the most common things we hear is that “the police did not read me my rights.” Usually this means that the police did not read Miranda rights:
- You have the right to remain silent when questioned.
- Anything you say or do can and will be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning, if you wish.
- If you decide to answer any questions now, without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
- Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
If police do not read your Miranda rights to you, there are few consequences. Miranda generally only applies AFTER you are arrested and it excludes only statements that you made.
In contrast, your 4th Amendment rights always apply and a police violation can result in all the evidence against you being thrown out.
What happens if police violated my 4th Amendment rights?
If your attorney believes your right against unreasonable search or seizure has been violated, then your attorney will make a pretrial motion to suppress. If the judge grants your motion, then all the evidence against you may be suppressed. This includes statements that you made, field sobriety test results, and breath or blood test results. Without evidence the case is dismissed.
This massive suppression of evidence is sometimes known as “the fruit of the poisonous tree” doctrine: if the root is bad the fruit is bad!