DWI: The Right to Remain Silent

By Katherine Scardino

The Fifth Amendment to the U.S. Constitution protects citizens from being forced to incriminate themselves in testimony. To “plead the Fifth” is to refuse to answer a question because the answer could be self-incriminating. As a U.S. citizen, you are confronted with this right probably more often than any other issue in the Constitution.

For example: You are a working-class guy. You get a call from a buddy inviting you to the local pub for one beer before you hit the freeway for your hour-long commute home. You leave work, stop by the pub, have one beer, and chat a while with your friend. You leave, get in your car, and start your long drive home for dinner and family. You feel fine, in no way impaired. Unfortunately, a police officer sees you “slide” through a stop sign and stops you for a traffic violation. The officer comes to the driver's-side window, ask for license and proof of insurance. You hand them over readily. As you hold them out of the open window, the officer smells beer and asks you to step out of the car.

You have just started down the “DWI Road to Hell.” Let’s assume you're not intoxicated and you know that one beer won't impair your usual and normal faculties. You believe you could pass any test.

You are wrong.

The officer’s goal from this point forward is to gather enough information and evidence to make an arrest. If he smells the slightest odor of alcohol on your breath, he most likely has already decided you are intoxicated -- or at the very minimum, that you shouldn't be on the road with the rest of us.

The officer asks you questions: where have you been? When was the last time you ate? What did you eat? Who were you with? Where are you going now? And of course, did you have anything to drink? He'll ask any other question he thinks may give him enough cause to arrest you.

This is the telling moment. Are you going to answer his questions at all? Are you going to answer them and truthfully? Are you going to answer the questions, but lie?

Your correct answer is none of the above. You're going to tell the officer: “I refuse to answer these questions without an attorney." If you start answering his questions, you are building a prosecutor's case against yourself. You're not using your Fifth Amendment right to simply shut up.

The officer will ask you to perform a set of Field Sobriety Tests, a set of pretty silly tasks. After all, you're standing on the side of the road -- and the road surface is uneven. It's most likely dark. You may have some physical problem, such as arthritis, that may cause a knee or leg to creak every now and then. You may not see as well at night as in daylight. You may simply not be able to balance yourself, or, if you're like me and a lot of other people, you can't chew gum and walk across a room at the same time.

So, here is this officer, looking intimidating in a dark blue uniform, a gun on his hip, a badge on his chest -- and all he wants you to do is “walk a line.” The catch is that he tells you to do it in a very specific manner. For example, when you get to the end of the line, you must “pivot” back around. If you perform that task, then the officer will ask you to stand upright, arms stretched out to the side and then tell you to touch your nose with your hand. He'll tell you “left” or “right,” meaning you'll touch your nose with either hand at his call.

Another, more ridiculous test has to do with horizontal gaze nystagmus. It's a test that gives the officer (who has had zero training in opthalmology) several “clues” by shining a penlight in each eye and asking you to follow the penlight with your eyes as he moves it from side to side. This has been a very simplistic explanation of the tests you'll face, but the point is: Do not do them. An M.D. I spoke to about this said it's is impossible to get a good “reading” from this type of test on the side of the road.

Regardless, your correct response is: “I refuse to perform these tests without an attorney present to advise me."

You will now be arrested for Driving While Intoxicated.

You'll be handcuffed, pushed into the back of the police car, and taken to the local county jail for the video of these same, side-of-the-road tests. You'll be taken into a small empty room. A video camera will be mounted on the wall opposite the doorway. You'll be videotaped performing more tasks inside this room, if you do them. Instead, your answer to each test command is: “I want to cooperate with you, but I refuse to comply with your requests until I have had the opportunity to consult with my attorney.” (Remember, you are on video and your jury will ultimately see this video, so you want to look and sound polite at this point.) Plus, the camera is focused on a point on the wall where there's a visible line so that if your body sways just a little, it will be apparent on the video.

After you refuse the tests for the video, you'll be asked to blow into a machine known as an Intoxilyzer or Breathalyzer. In this test, the machine is supposed to determine whether you are legally intoxicated -- without knowing your gender, height, weight, how much you are used to drinking, whether you have eaten, and any other personal information relevant to determining whether you are too impaired to drive a car.

You'll refuse this test, too. Refusing it may cost you your driving privileges at least until an administrative hearing. But by then you'll have an attorney appear with you, and at the minimum, your attorney can use this hearing for discovery -- learning what evidence, if any, the prosecutor has. Your attorney can subpoena the arresting officer for this hearing and ask him some questions for the record.

Meanwhile, after refusing all tests, you'll be booked into the local county jail, where you'll sit until your friend or family comes down to the jail in the middle of the night to post your bond or find a bondsman to get you out of jail.

But, you say, all I did was exercise my right not to help the State build its case against me. That's true -- but by refusing to perform these tests, you leave the State with no evidence but the opinion of the police officer. You've made no admissions about a number of beers you may have had; it has no video of on the side of the road doing any of these Field Sobriety Tests. That will make it a lot easier for an attorney to defend your against the charge and more likely your defense will succeed. It's a lot harder to get a conviction with only the opinion of the police officer. He's not an expert; he's not a doctor.

Now that the Christmas season is here, it's more likely the above scenario will happen to you. Some people will say: if you're not intoxicated, why refuse to answer questions or perform roadside tests? My answer is because you can.

Tiger Woods had an automobile accident last week. He was taken to the hospital and only gave the pertinent, required information to the police agency investigating the accident. He was criticized loudly because he didn't sit down with the officer and regurgitate every single thing that he and his wife talked about that night, every word that came out of their mouths in anger or hurt. It was none of our business. Repeat: it was none of our business. And it was none of the police officer’s business.

So, be careful out there. Be safe, but remember that you don't have to perform any task or answer any question. Don't help the State prosecute you. Be careful with your drinking, and bring along a designated driver. No one promotes drunken driving; that's stupid. Exercising your right to shut your mouth so you don't help a prosecutor build a case against you is not stupid.

Remember: it's easier to defend against a DWI charge when there is no evidence.

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When Loved Ones Do The Unthinkable

by Diane Dimond

There’s a drama playing out in West Babylon, New York that makes you want to go home and tell your family how much you love them. It also makes you wonder how much bad news about your loved one you could accept if he or she did something so horrible it caused seven innocents to lose their lives.

On Sunday, July 26th, at about 10 o’clock in the morning, Diane Schuler got behind the wheel of her red mini-van with five children, all under the age of nine -- including her brother's three little girls -- to return home from an upstate New York camping trip. At some point during the drive, Schuler’s young niece, Emma, picked up a cell phone and called her father. “There’s something wrong with Aunt Diane!” she is reported to have cried.

Diane Schuler had inexplicably gotten on a suburban highway going the wrong way. The horrific head-on crash that followed -- after she drove the wrong way for almost two miles -- killed everyone in her vehicle except her five-year-old son, Bryan. Three unsuspecting men in the other vehicle, a Chevy TrailBlazer SUV, all died. In a split second, eight people were dead in a pile of twisted and burning wreckage barely recognizable as automobile parts.

Flash forward to the toxicology report on this seemingly happily married mother of two. The coroner’s office concluded that Diane Schuler had a blood-alcohol level of .19 – more than twice the legal limit – plus six grams of unabsorbed alcohol in her stomach. In addition, her blood carried 113 nanograms per milliliter of THC, the active ingredient in marijuana. The medical examiner said the level indicated Diane had smoked weed as recently as 15 minutes before the fiery crash. Translated: Schuler was very drunk and very high at the time of the accident.

Oh, and police report they found a 1.75-liter bottle of vodka in the minivan after the deadly accident.

Police waited until after the dead were buried to release Diane Schuler's toxicology report. After the information came to light, the grieving husband, Daniel, went before the press to categorically deny his 36-year-old wife had an alcohol or drug problem. He revealed he works nights, and their two children were frequently left with a babysitter, but he insisted some sort of unidentified medical problem must have caused her to lose control of the car. “She was a perfect wife, upstanding mother, a hard worker, a reliable person, trustworthy,” he said through his tears, remembering both his wife and his dead two-year-old daughter.

Denial in the face of reality. And a mourning man is left to nurse his critically wounded young son back to health. Your heart goes out to Daniel Schuler, as delusional as he is in the face of overwhelming forensics.

But that’s not all this new widower must face. A flamboyant New York attorney named Irving Anolik has entered the picture to claim “there’s a strong fragrance of criminality” to the crash deaths. He plans to file a civil suit against the Schulers. Anolik represents the family of Guy and Michael Bastardi, a father and son who died in the SUV. Anolik says it is “inconceivable” that the Schulers were unaware Diane had a drinking and drug problem.

“Any person who was aware that she was drinking is an accomplice … whoever sold her the marijuana committed a crime,” said Anolik. “She didn’t just wake up one morning with a drug problem and capable of drinking that much alcohol.”

Anolik has a point, but the whole idea of blaming the family and making them pay for their dead loved one’s actions doesn’t sit well with me. I completely understand the urge for revenge, the need to make someone pay you back for the awful thing that’s happened. But ultimately, it's empty satisfaction.

We’ve become a society of blame seekers. Someone must take the blame for all the bad things that happen to us in life. One person’s bad judgment can't be merely accepted. For some reason, we need to point the finger of responsibility at others and demand money to ease our hurt and our loss. Of course, money doesn’t do either. The dead are still dead, and we still feel the tremendous loss deep in our souls.

But there’s always a lawyer willing to take the case for the promise of 30% of the settlement amount. Almost all the plaintiffs I’ve spoken to at the end of long, grueling, wrongful-death lawsuits say the same thing. In retrospect, they realize the years-long legal process they endured only served to keep their grief fresh. It prolonged the pain and the time it took to heal. The family of the Bastardi father and son were in court recently asking a judge to name an executor of Diane's estate so they'll have something to sue.

Do I think the survivors of the dead in this case deserve something? Yes. They deserve some peace for the awful event that has shattered their lives.

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Celebrity Jail Birds

by Tina Dirmann

What's the saying? Birds of a feather flock together. Well, let's pause for a moment to check out these celebrity birds. Jail birds, that is. We have one who just got out of jail. Another who is headed to jail. And another who is sitting in the slammer right now. And in my opinion, as a long time crime and celebrity reporter, it's classic spoiled star behavior that's landed each of them in their current predicament.

Let's take them in order:

First, the one who just got out? Josh Brolin, presently in Louisiana shooting the Oliver Stone film "W," a fictional flick about the president's relationship with his father. After work, Brolin, 40, and several co-stars and crew members headed to a local bar Saturday night to blow off some steam. No problem there. Until the clock struck 2 a.m. and the rowdy bunch apparently had a problem leaving. In the end, 10 officers from the Shreveport Police Department were called in, arresting Brolin and fellow actor Jeffrey Wright (who plays Colin Powell in the film) for impeding the officers.

The actors and four others were charged with interfering with police, a misdemeanor, while another man, a lighting tech, was cuffed for resisting arrest and public intoxication. All were booked into city jail, according to a report by the Shreveport Times. Brolin and others posted $334 bond and were released.

Bratty jail bird number two? Khloe Kardashian: co-star of the E! reality show "The Kardashians," sister to the better known Kim Kardashian, and daughter to the late O. J. defense attorney Robert Kardashian. As if it wasn't bad enough that Khloe, 24, was booked March 4 on a DUI charge (registering, at the time, a .13 blood alcohol level). Afterward, she decided to blow off her probation requirements. The terms? Oh, the usual for a drunk driving offense. She had to work for Cal Trans (I'm assuming that means donning the infamous orange vest and picking up trash along the freeway). And she had to complete an alcohol education program. She did neither. Just forgot, I guess. I haven't heard, yet, a plausible explanation. Maybe because there isn't one. Oh well.

At least she's off the hook for that trash pick-up thing. Instead, on Friday, she'll begin serving 30 days in jail. Let's just hope she doesn't fair as well as Nicole Richie, who, last August, served just 82 minutes of a 4 day sentence after driving the wrong way on the freeway at 4 a.m. (while under the influence of marijuana and Vicodin, of course). Overcrowding at the jail was to blame, sheriff's officials said. Well, at least Khloe still has to enroll in alcohol education. Let's hope she learns something.

Dare to dream . . .

But the most outrageously bratty celeb jail bird behavior of them all? Nick Hogan, 17, currently serving an eight-month jail sentence in a Florida County Jail for felony reckless driving. You remember this case, right? While street racing, Nick lost control of his father's 1998 Toyota Supra, hitting a raised median and slamming the car into a palm tree. Nick's passenger and best friend, John Graziano, suffered a broken skull, lingered in a coma for several weeks, and will need life long care. Medical bills for John have already totaled more than $1 million.

Nick's sentencing was carried live on CNN.

Nick, son of wrestling super star Hulk Hogan and a regular on the family's reality show, "Hogan Knows Best," has proven himself entirely ungrateful, despite leaving the accident unscathed, and receiving a relatively light sentence. Instead, he's whined about his inability to make it in jail, pleading to serve out his time through home arrest, with an ankle bracelet. The judge said no.

In addition, he's repeatedly tried to capitalize on his time behind bars, going so far as to try to develop his own reality tv show about his jail experience. So far, thankfully, no one in Hollywood will touch the pitch.

But I can only assume Nick's tacky behavior is a family trait. After all, jail transcripts of phone conversations between Nick and his family show Hulk blaming John, the victim, for the accident. It was payback from God, Hulk told his son, because John was such a bad guy. Nick's mom, Linda, meanwhile, called John's mother "nasty," according to TMZ, and claims the real suffering is in the Hogan family.

Ugh. Anybody else's stomach turning here? On that note, we'll conclude today's look at the very un-glamorous side of Hollywood. I think we've had enough.

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