Flagstaff Lawyer Discusses How to Get an Arizona Felony Conviction Set Aside and What that Means for Your Civil Rights

Arizona law allows convicted felons to apply for several post-conviction remedies. In this article, I’m not writing about appeals and “post-conviction relief” pleadings. What I am talking about is getting your civil rights restored (e.g., gun rights), getting your conviction vacated or “set aside,” and the whether or not that conviction can still be used against you in the future.

Arizona law allows you (or your attorney or probation officer) to apply to the Court “on fulfillment of the conditions of probation or sentence and discharge by the court[.]” A.R.S. section 13-907. I recommend speaking to an attorney before you file an Application to Set Aside Judgment because it is important that you do it right the first time around.

If you are a first-time felon in Arizona, after you complete probation or your prison sentence, and you complete victim restitution, then you “shall automatically be restored any civil rights that were lost or suspended by the conviction.” A.R.S. section 13-912. However, be careful when it comes to guns, because your gun rights are not automatically restored! To get your gun rights restored, you must comply with two very specific Arizona statutes, specifically A.R.S. sections 13-905 and 13-906. Speak with an attorney if you want your gun rights to be restored correctly. It can be a very tricky process.

Once you have your conviction set aside, whether by application or automatically (for first-time offenders), you can get your civil rights restored. In fact, you will be released from “all penalties and disabilities resulting from the conviction[.]” A.R.S. section 13-907. That said, there are exceptions to this rule. One major exception is that, even though your conviction was set aside and your judgment was vacated, the State of Arizona, in a future felony prosecution against you, can and will use your prior conviction to enhance your next sentence. That’s right, even if you had your conviction set aside, the “fact” of the conviction will be used against you if you are convicted of another felony offense.

In a 2008 case, the Arizona Court of Appeals addressed that issue, referring back to older cases that said, ““The statute itself is proof that restoration of civil rights under section 13-907 does not expunge or remove the fact of conviction in Arizona. The statute allows an otherwise admissible prior conviction to be used for subsequent prosecutions as if the judgment of guilt had not been set aside.” Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 467-68, ¶ 15, 974 P.2d 443, 446-47 (App.1998) (footnote omitted); accord State v. Green, 173 Ariz. 464, 469, 844 P.2d 631, 636 (App.1992), vacated in part, 174 Ariz. 586, 852 P.2d 401 (1993) (noting statute “specifically authorizes the conviction to be used as a prior conviction in subsequent prosecutions”); see also State v. Key, 128 Ariz. 419, 421, 626 P.2d 149, 151 (App.1981) (noting statute permits a person to be released of all penalties and disabilities “with the exception that the conviction may be proved as a prior conviction in a subsequent criminal action”).

Thus, even when your conviction is vacated or set aside, the fact that you were ever convicted of a felony in the first place can come back to haunt you. According to the Arizona Court of Appeals, that’s what the legislature intended when they drafted the terribly-worded law that is A.R.S. section 13-907.

Flagstaff Lawyer answers Arizona criminal law questions…

Question: What is a “Thayer presumption”? What is “prosecutorial misconduct”? What is the mercy rule? How about the adverse interest rule? And what is an Alford Plea?

Mr. Stevens’ Answer: The Thayer presumption refers to a certain type of a presumption, commonly understood as a burden of production but not persuasion. Under the Thayer approach, the purpose of a presumption is to require a party against whom a presumption operates to come forward with any evidence of the nonexistence of the presumed fact. This concept is rarely argued in criminal law because it relates to procedure, and the Arizona Rules of Criminal Procedure clearly define what types of presumptions occur in Arizona criminal law.

Prosecutorial misconduct is generally a procedural defense in which a defendant claims that the prosecutor acted inappropriately. Usually you’d have to prove that the prosecutor knowingly and intentionally violated constitutional rights or Arizona law in favor of the prosecution. This does occur but is not simple to prove. The only “mercy rule” that I know of relates to sports events, not criminal law, so I can’t help you there.

The adverse interest rule is a legal principle saying that if a party fails to produce a witness who is within its power to produce and who should have been produced, the judge may instruct the jury to infer that the witness’s evidence is unfavorable to the party’s case. This is rarely used in criminal law. However, for example, if the prosecutor has a witness with relevant information and fails to produce that witness, there is a presumption that the evidence was favorable to the defendant. Usually, the defendant can call the witness instead, thus defeating the need for the rule.

An Alford Plea is a “no contest” plea where a criminal defendant does not admit committing the crime (i.e., does not admit guilt), but admits that the prosecution could prove guilt. Usually, an Alford Plea is accepted where a defendant was so drunk or drugged out that he/she cannot remember committing the crime. In that case, the defendant cannot knowingly plead guilty (because he/she doesn’t remember committing the crime!), so the Court accepts a “no contest” plea. You should never enter a plea of guilty or an Alford plea without a lawyer!

Flagstaff lawyer discusses Flagstaff city dog laws…

The Flagstaff City Code is a set of ordinances and laws that governs various topics within the jurisdiction of Flagstaff city limits. One section is dedicated entirely to man’s best four-legged friends: DOGS.

While I would speculate that most dog-owners in Flagstaff regularly “violate” the Flagstaff laws on dogs, believe it or not, people actually get charged with criminal offenses for violating the dog laws of Flagstaff.

For example, any dog off the premises of its owner must have a collar with a securely fastened government issued dog tag which costs $10 to $20, depending on if your dog is neutered or spayed. Here’s a taste of what the Flagstaff dog laws say about collars: “At all times when a dog is off the premises of its owner, said dog shall have a collar around its neck with the metal tag aforesaid securely fastened thereto.” See Flagstaff City Code section 6-02-1-8.

Most Flagstaff dog owners don’t know, or care, about the Flagstaff city government’s efforts to control and regulate all things relating to their dogs, including of course the “barking or howling dogs” ordinance. “It is unlawful for any person owning or having the care, custody or control of any dog to permit said dog to bark, bay, howl or make any other noise, day or night, in such an unreasonable manner as to disturb the peace and quiet of any person or persons.” See Flagstaff City Code section 6-02-1-11(C).

And then there’s dog bites and “vicious dogs.” In Flagstaff, a “vicious dog” is defined in four ways:

  • A dog that bites a human beings without provocation; or
  • A dog with a known propensity, tendency, or disposition to bite human beings; or
  • A dog that while at large kills or causes injury to domestic animals; or
  • A dog declared to be a vicious dog by a City Magistrate after a determination at a hearing of a pattern of aggressive behavior that has caused injury, apprehension or intimidation of a person.

Basically, if your dog nips someone without provocation, you’ve got yourself a “vicious dog” that Flagstaff city law requires to be muzzled when off the premises of its owner. So if you take your dog on a walk, and it had nipped at someone in the past, then you have to muzzle it or else you’re guilty of violating Flagstaff city dog law. Here is what the Flagstaff city law says:

“No person owning or having charge, care, custody, or control of a vicious dog shall permit such dog off his premises unless such dog is under the control of a competent person and is securely leashed and muzzled.”

Flagstaff City Code section 6-02-1-1(B)(1).

Violating Flagstaff city dog law is criminal in nature and involves court hearings, pre-trial conferences, plea negotiations, plea agreements, criminal restitution.

Worst of all: the City of Flagstaff may kill your dog. That’s right, if your dog is found to be “vicious” by the government, they can order the humane destruction of your dog. They can kill your dog.

If you have been cited by the Flagstaff police or Flagstaff City Attorney with any violation of the Flagstaff City Code, including the Flagstaff dog laws (failure to control dog; vicious dog; dog-at-large; failure to have a dog collar; etc.), call or email Griffen & Stevens Law Firm, PLLC for a free evaluation of your case.

I’ll unleash your best legal defenses. And always remember: one barking dog sets the whole street barking. I look forward to speaking with you.

Flagstaff-Lawyer discusses Arizona street racing and exhibition of speed…

Question: I was cited for “drag racing” by a police officer. I don’t know what that means. The prosecutor offered me a plea to “28-701(A).” Should I accept that plea?

Mr. Stevens’ Answer: The law you were cited for, A.R.S. section 28-708, is essentially for street racing. Here’s how Arizona criminal law defines street racing:

“A person shall not drive a vehicle or participate in any manner in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance or exhibition of speed or acceleration or for the purpose of making a speed record on a street or highway.”

Your cited offense of exhibition of speed, street racing or drag racing criminal in nature — it’s a class 1 misdemeanor for your first offense, and can even be classified as a felony if you are convicted of it twice in 2 years.

The minimum fine if you are convicted of violating 28-708 is $250, but could be up to $2,500, along with jail and community service. Now, the prosecutor has offered you a plea to 28-701(A). Unless you think the citation is bogus and that you are innocent, this is not a bad plea. What the plea is basically saying is that you drove “at a speed greater than is reasonable and prudent,” according to Arizona traffic law.

That would be a civil penalty, and not a criminal conviction. It’s your basic, run-of-the-mill Arizona speeding ticket. But make sure your plea does not say section 28-701.02 because that is a class 3 misdemeanor and puts you back in the world of Arizona criminal law. Please keep in mind, I don’t know the total facts of your case.

So, I would strongly recommend you to consult with an Arizona lawyer before you accept a plea or demand a trial. I do free consultations on all Arizona criminal and traffic cases. Best of luck.

Flagstaff Lawyer discusses premeditated and felony-murder (emphasis on arson murder)…

In Arizona, when a person commits arson of an occupied structure, and someone dies, the person is guilty of first degree murder under the felony-murder statute. The punishment is the same as premeditated murder.

Recently, in Prescott, Arizona, Zachary Sutton has been accused of first degree murder. Originally, it looked like an arson-murder (i.e., felony-murder) but has possibly evolved into a premeditated first degree murder.

Either way, if convicted of either premeditated or felony-murder, Sutton faces possible life imprisonment. In Arizona, felony-murder works like this. The crime of first degree felony murder requires proof that: (1) the defendant, acting either alone or with one or more other persons, committed or attempted to commit a specified felony offense (e.g., arson of an occupied structure); and (2) in the course of and in furtherance of this crime or immediate flight from this crime, the defendant or another person caused the death of any person.

Thus, committing arson of an occupied structure, in the course of which someone dies, is felony-murder. Felony-murder is a distinct crime from premeditated murder because the elements of the crimes are different. But, the punishment is identical for both. Like the prosecution that Sutton is facing in Yavapai County, I prosecuted Cynthia McDaniel for an arson-murder. She was convicted of first-degree felony murder, even though she had no premeditation to kill.

According to the Arizona Supreme Court, here is what premeditation means:

“Premeditation” means that the defendant intended to kill another human being or knew he would kill another human being, and that after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.

Therefore, under Arizona law, a person can be sent to prison for life on a first degree (felony) murder conviction without ever having premeditation.

Feel free to email me questions on these issues and any other Arizona criminal law question!

Flagstaff-Lawyer discusses a defendant stuck in jail awaiting trial and the meaning of complex case designation…

Question: What does it mean when a State of Arizona prosecutor files a motion for a complex case designation in someone’s case? What if the defendant is in custody, stuck in jail, awaiting trial?

Mr. Stevens’ Answer: Under Arizona law, a complex case designation adds 90 to 120 days (depending on if the defendant is in custody or out of custody) to the total maximum amount of time that the prosecutor has to bring the case to trial. The relevant rule is Rule 8 (Arizona Speedy Trial) of the Arizona Rules of Criminal Procedure.

The Arizona Constitution, and the United States Constitution, also come into play. But procedurally speaking, Rule 8 sums up the situation for your question. Complex case designation under Arizona law is reserved for first degree murder cases, cases involving certain search warrants (wiretaps, etc.), and any other case that the Court believes is truly complex. If a person is in jail, awaiting trial on a felony, normally the prosecution has 150 days from the arraignment to take it to trial.

But in a complex case (if the Court grants the prosecutor’s motion), the person in jail has to wait for 270 days from the arraignment. You should be aware, also, that during the process of the case, such as at Case Management Conferences, if the Arizona defendant’s lawyer agrees to “waive Rule 8 time” or anything to that effect, the process will take longer than 270 days. What that means is that the defendant is waiving his speedy trial rights for a limited time, meaning he is not enforcing his right to a speedy trial at the moment, but can do so in the future by refusing to “waive time” any further.

Any extension of time should be to the benefit of the defendant’s case. No Arizona defendant or Arizona defense lawyer should ever “waive time” or waive constitutional rights unless there is some benefit to the defendant who is sitting in an Arizona jail, awaiting trial.

Flagstaff DUI: what you need to know…(Part 2)

Question: I was arrested for a DUI in Arizona. They towed my car and took me to the police station. They started reading me a long list of questions and something about my constitutional rights. They wanted me to take a breath test and give a blood sample. I didn’t want the cop to stick a needle in my arm so I said no to both. They got a warrant. I sat in an Arizona jail for over 12 hours. Help me, what is going on?

Ryan’s Answer: Getting arrested for a DUI in Arizona is a very serious situation. After you were pulled over and the officer performed his DUI investigation, he arrested you for DUI. Once a police officer arrests you for DUI, a whole lot of things start happening under Arizona DUI law. This blog article covers some of the major things that happen, but not everything.

When you get a DUI in Flagstaff or any jurisdiction in Arizona, you must be informed that you are being arrested for DUI. At that point, your car will usually be towed, and you will be taken to either the police station or the local jail, or both. Once you are under arrest, the police cannot interrogate you unless you have knowingly, voluntarily, and intelligently waived your Miranda rights: Right to remain silent; Right to counsel; and Right to have counsel appointed if you are indigent. Please be aware that you can always politely and respectfully decline to answer any questions.

For example, when a police officer asks you how much alcohol you had to drink before driving, unless your answer is none, keep your mouth shut. You can say, “I do not mean you any disrespect, but I do not consent to answering your questions. I also want to speak with a lawyer, unless I am free to leave right now. If I am free to leave, I want to leave now. Thank you.” If you are not in custody at this point, you may not be provided with a lawyer, but you still do not have to make any incriminating statements.

Once at the station or jail, the police are required to read you certain rights, which are called the Admin Per Se. The officer will inform you of many rights, but the major ones are as follows. You will be requested to take a breath, blood, or urine test (to be decided by the police). You can refuse to provide a sample, but if you refuse, that refusal has consequences, including a longer suspension of your driving privileges in Arizona. When you are arrested for DUI, your license will customarily be suspended as well.

Now, once you have heard your Admin Per Se rights, you have to decide whether or not to consent to providing a breath, blood, or urine sample (whichever the officer is requesting). If you refuse, and you are charged and go to trial, the prosecutor can actually argue to the jury that your refusal to provide a sample is evidence of your guilt!

If you agree to provide a sample, you may be giving the government the evidence they need to convict you. For example, if you agree to provide a breath sample, and it shows you at 0.10% blood alcohol concentration, you are almost definitely going to be charged with DUI. And that breath sample is evidence of your guilt. Trust me, the government will use it against you.

If you refuse to provide a sample, the police can seek an Arizona search warrant from a judge or justice of the peace for a blood sample. If they get the warrant, they will take a sample of your blood. If you refuse, squirm around, or assault a police officer while they are trying to stick a needle in your arm against your will, you can be charged with several felony offenses like Resisting Arrest or Aggravated Assault on a Law Enforcement Officer. So, once they show you a warrant, do not resist the blood sample.

Unfortunately for you, Arizona law does not require a medical professional to take your blood. Under Arizona law, a “qualified phlebotomist” is all that is required for taking a blood sample. Most police agencies in Arizona, including the Flagstaff Police Department and Coconino County Sheriff’s Office, have qualified phlebotomists on staff. They are usually police officers and/or detectives who are qualified to take your blood. Therefore, you will be placed in a chair, told to extend your arm, and to allow a police officer to stick a needle in you and withdraw your blood.

Once your blood is taken by a qualified phlebotomist, it will be stored in the Evidence Unit and sent over to the Arizona Department of Public Safety (DPS) crime laboratory. Scientists at the DPS crime lab will perform a blood alcohol analysis on your blood sample and file a report with their results.

While your breath sample will be analyzed immediately, your blood sample will not. It often takes months for the DPS crime lab to return results on a blood sample.

So what happens to you?

After the police investigate you for DUI, arrest you for DUI, take you to the station or jail, read you your Admin Per Se, and then obtain a breath or blood (or urine) sample, you can either be held or released. If they hold you in jail, they have to take you in front of a judge within 48 hours, or release you from custody. If you are released, your case will be processed by a city prosecutor or county attorney’s office, and you may be charged with a DUI. Be aware that the government has one (1) year to file a complaint against you for a misdemeanor DUI. If it is a felony DUI, you can be charged up to seven (7) years after the date of offense.

While your license is suspended for DUI, DO NOT DRIVE A MOTOR VEHICLE. You do not want to also be charged with Driving on a Suspended License. If you can afford it, do an alcohol screening assessment with a qualified counselor and find out if you need help with your alcohol addiction, if you have one. Get the help you need. Stay out of trouble and wait to find out if you are charged with an Arizona DUI.

Flagstaff lawyer: Murder in Flagstaff…

In the middle of a beautiful summer two years ago, people were hiking, running, and sharing the sunshine in Flagstaff, Arizona. But some of the community’s teenagers, as in every community, were living a dark secret involving parties, drugs, and guns. If it happens in Flagstaff, it almost seems inevitable that it will happen everywhere.

On the night before Justin Jackson was murdered, he was up to no good. Justin was both a loving brother and son, and a small time drug dealer. He was out drinking, and in fact was very drunk. He got a call from a friend on the east side of Flagstaff that somebody was looking to trade marijuana for Justin’s ecstasy pills. That somebody was Micah Neumann. Justin agreed to swap drugs with Micah, but he had a different plan in mind.

Moments later, Micah showed up in the passenger seat of a car, ready to swap his marijuana for ecstasy. As Micah weighed the marijuana on a scale on his lap, Justin came up to the passenger side of the car and started pummeling Micah in the head and face with a closed fist. He took Micah’s marijuana and walked away. Micah left, too, and decided to call his drug supplier for help. That drug supplier was Jesse Collier.

Jesse Collier has a great family and strong community support. Nothing would have predicted that he held a dark secret: he was a drug dealer. And when Micah called Jesse after being beat up by Justin, Jesse revealed that he had a gun, a real one, with bullets. Jesse gave Micah a fake gun and held onto the real gun for himself. They did not decide to get revenge on Justin that night, but Justin was now on their radar.

Jesse lived with his best friend and fellow drug-dealer, Ben Hamilton. When Jesse woke up the next morning, after Micah had been beat up by Justin, Ben asked Jesse what had happened. Jesse told him, and Ben said they may have to kill Justin. The day unfolded quickly for Ben, Jesse, and Micah. Shockingly, Justin placed several calls to Jesse that day. They had never spoken before.

After one of those calls, Jesse realized that the “Justin” he spoke with is the same Justin that beat up Micah, the same Justin that was on their radar. Jesse and
Ben decided to exact revenge on Justin. The plan was simple, kind of. They would pick Justin up under the pretense of a drug deal. For some reason, Justin wanted to buy marijuana from Jesse, or at least that’s what Justin told Jesse.

Ben and Jesse drove to Micah’s house and told him to hide in the cargo area of Jesse’s SUV. Micah was told to get a blanket, and hide under it, so that he could secretly confirm that the “Justin” they were going to meet up with was the same one that jacked Micah the night prior. Ben, Jesse, and Micah drove off to meet up with Justin. On the way there, Ben tried to load a bullet into the chamber of Jesse’ gun. It jammed. Ben couldn’t get it to load. Jesse stopped the car, loaded the bullet into the chamber, and handed the gun back to Ben.

It was time.

They met up near the big movie theater in Flagstaff. Justin wanted to do the drug deal in a car wash. Jesse asked Justin to get in the car instead. They drove off. Micah secretly confirmed that it was the same Justin that had jacked him.

They drove out to a dirt road, in the far-west city limits of Flagstaff. It’s called Woody Mountain Road. Jesse took a dirt road off of Woody Mountain Road, back into the woods, into seclusion, and came to a stop. Ben said, “You robbed our runner, now you’re fucked.” He pointed the gun at Justin. Micah popped out from under the blanket. Jesse pulled a switchblade. It was an onslaught.

Justin refused to get out of the car. Ben kept the loaded gun pointed at Justin. Jesse put the knife to Justin’s throat. They all demanded Justin to get out of the car. He did.

They checked him for weapons and then ordered him to the ground. Justin laid face down on the dry Flagstaff dirt, with his hands up near his head. He looked back at his robbers, pleading for his life, “Micah don’t do this, Micah don’t do this.”

Suddenly, Ben pulled the trigger and sent a single bullet spiraling through the dry air, through the baseball cap on Justin’s head, through Justin’s skull, and out Justin’s cheek. Within minutes, Justin was dead. He was 16 years old.

Micah was the first to crack. Within 48 hours, he told the Flagstaff Police almost everything. Jesse was arrested hours before he was scheduled to fly to Italy for a pre-planned vacation. Ben turned himself in after learning that the police were looking for him.

Jesse ultimately cooperated with the police, led them to the gun (which Jesse and Ben had buried after the murder some 10 miles into the woods), showed them the victim’s cell phones (which Jesse and Micah had destroyed and buried in the woods), and agreed to testify against Ben Hamilton at trial.

Jesse testified, and so did Micah. Ben was convicted of Felony Murder, Second Degree Murder, Armed Robbery, Aggravated Robbery, Kidnapping, and Possession of Marijuana for Sale.

Ben got 27 years to life in prison. Jesse got 8.5 years. Micah got 5 years. Justin’s family… they got justice.

Flagstaff lost 4 promising young lives.

Flagstaff lawyer: So you earned a misdemeanor on a felony charge…

Question: I earned a misdemeanor after successfully completing my felony probation on an undesignated class 6 felony plea agreement. But now I have some questions. (1) Can I apply to have my conviction set aside? (2) Are my rights automatically restored now that I completed felony probation? (3) How do I approach job applications when they ask about my felony history?

Ryan’s Answer: Congratulations on successfully completing probation. Now let’s get to your specific questions:

  1. You or your lawyer may apply to have your judgment of guilt set aside. The rule is: on fulfillment of the conditions of probation or sentence and discharge by the court, you may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation to have the judgment of guilt set aside. It is not a guaranteed right. It is in the discretion of the judge. So if you have good reasons and think you deserve it, give it a shot. Beware that you cannot apply if your offense involved the use or exhibition of a deadly weapon or dangerous instrument. A lawyer can help you with the various issues involved. You want to put your best foot forward on the first try.
  2. If this was your first felony conviction, then you shall automatically be restored any civil rights (except right to possess weapons) that were lost or suspended by the conviction, as long as you successfully completed probation and paid all fines and restitution. Beware this rule does not apply to your right to possess weapons, which requires special pleadings to the court.
  3. In regard to job applications, read the question carefully. If it says, “Have you ever been charged with a felony?” It seems that your answer is “Yes, but I do not have a felony conviction.” If it says, “Have you ever been convicted of a felony?” It seems that your answer is “Yes, but my conviction is now a misdemeanor.” If the question is, “Do you currently have a felony conviction?” The answer is “No.” This can be tricky, so be careful, and you’ll probably want to explain your answers in much more detail.

You have the right to hire a lawyer to assist you with all of your excellent questions. A lawyer can help you apply to have your conviction set aside, can help you get your rights restored, and can help you word your job application to be both truthful and to give you your best chance at success.

Contact me for a free evaluation of your situation.

Flagstaff DUI: What you need to know… (Part 1)

Question: I got pulled over in Flagstaff for a DUI. The officer asked me a lot of questions, like whether I’d been drinking, and whether I’d do field sobriety tests. What should I have done?

Ryan’s Answer: You do not have to say yes to every request of the police officer. Let’s go over the basic three things that happen.

First, you must pull over when the red and blue lights are behind you. Unlawful flight from a law enforcement vehicle is a class 5 felony; don’t do it.

Second, you must remain in your vehicle unless and until the officer directs you to step out. If the officer perceives you are a threat, he/she can detain you and pat you down. Also, if you trip, stumble, stagger, or even use your hands while getting out of your car, the officer can use those things as indicia of intoxication. Stay in your car (until told otherwise).

Third, you must produce your license, registration, and proof of insurance. Have those items ready by the time the officer approaches your window. Have your window rolled down already. Do not fumble around with anything in your car. After all of that, you do not have to agree to answer any questions that could be incriminating. You have to say your name. And I always advise my clients to be polite and respectful toward the police. But there is a difference between being polite and incriminating yourself.

If asked to say or do anything that could be incriminating, you should say something like, “I wish to remain silent and to speak with an attorney. If I am free to leave, I would like to leave please. I do not mean any disrespect.”

If the officer detains you further, do not become uncooperative. Keep your cool. If the officer asks you to perform field sobriety tests (commonly called FST’s), you may decline. FST’s are not required. They are optional and voluntary. You can tell the police officer that you respectfully decline to do them. You should also tell the police officer if you have any injuries or ailments that would prevent you from walking perfectly (i.e., a sprained ankle), or from performing coordination tests. However, there’s a downside to refusing to perform FST’s.

If you are charged with DUI and you go to trial, the prosecutor can (usually) use the fact that you refused to do FST’s against you. But it’s better to go that route than totally fail the FST’s and have the officer tell the jury about everything you did wrong.

FST’s are very hard to do perfectly, even for a completely sober person, so if you want to do them when asked, go ahead, but realize the risk that you are taking.

Call me if you have any questions about this article, or if you need legal help.