DRUNK DRIVING & YOUR RIGHTS

Gourley, Rehkemper & Lindholm PLC

1. The 5th Amendment - At no time can you be required to be a witness against yourself. Simply put, you do not have to answer questions from police officers that could incriminate you. Example: Officer asks if you have been drinking or coming from the bar. The answer could and often times is incriminating in nature. You do not have to answer it and your refusal to answer that question on this basis cannot be used against you.

2. Field Sobriety Testing: YOU DO NOT HAVE TO PERFORM ANY OF THESE TESTS!!! Whether or not you "pass" or "fail" these tests is dependent upon the subjective determination of the officer. Chances of an officer (that already suspects you of driving drunk) saying that you passed these tests are incredibly slim. Your driving privileges cannot be suspended for refusing these tests.

3. Preliminary Breath Test: YOU DO NOT HAVE TO TAKE THIS TEST!!! This is an unreliable instrument, the results of which are not admissible in Court. Your driving privileges cannot be suspended for refusing this test.

4. ATTORNEY. The most important! You have both a constitutional and statutory right to consult with an attorney prior to taking the direct breath test at the station. Iowa law provides that once you arrive at the place of detention, you must be provided the opportunity to contact an attorney and/or family member if you so request. However, you must exercise this right by requesting to make a phone call to an attorney or family member. The officer does not have to tell you about this right. You also have the right to consult with an attorney or family member in private and in person so long as it does not interfere with the officer's 2 hour time period in which to offer the test.

5. DataMaster Direct Breath Test: This is the test at the station. The results of this test are admissible in court. If you refuse this test your license will be immediately suspended by the Department of Transportation for 1 year on a first offense. If you take the test and "fail" (blow over .08 for adults) your license will be suspended for 6 months on a first offense. By taking this test, you provide the State with evidence that can and will be used against you at trial. You do not have to take this test, however, as previously stated there are adverse repercussions with regards to your driving privileges. It is highly advisable to consult with an attorney prior to making the decision whether or not to take this test.

   If you have been in an accident resulting in injury and/or death, DO NOT submit to ANY chemical testing including blood, breath or urine requests.

6. Independent Test: If you fail the direct breath test at the station, you have the right under Iowa law to request that an independent chemical test be conducted at your own expense. The officer must then take you to a local clinic or hospital of your choosing (within reason) to have this test performed. It can be either blood or urine. Again, the officer does not have to inform you of this right. You must make the request.

While exercising your constitutional and statutory rights may upset an officer and lead him to arrest you, your case will be much better off and your chances of having it resolved in your favor will drastically increase if you do. Do not let the officer intimidate you with threats of arrest. Prisons are full of individuals that attempted to talk themselves out of being arrested! By talking and performing tests in the field, you provide the officer and ultimately the prosecutor with the evidence necessary to potentially convict you. While all is not lost if you cooperate, your best bet is to politely exercise your rights.

Free Initial Consultation

The drunk driving defense attorneys at Gourley, Rehkemper & Lindholm invite you to contact them for a free initial consultation if you have been arrested for a drunk driving offense.