User-agent: * Allow: / Legal news, political opinion, Satire, and lawyer thinking by Tim Paynter, Attorney at Law

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Tuesday, December 15, 2009

Do you have to do the walk? DUI?

I recently had the pleasure of being pulled over by the Colorado State Patrol. I was distraught over news about Eduardo Salazar Rivera, the 11 year old in Mexico who is fighting for his life. He has a rare childhood disease called HLH Syndrome and I was distraught over the struggle he was fighting together with his mother and father who are dear friends of mine.

When the officer saw my puffy red eyes he was shootin sure I was driving with more than my emotions. He could not detect an ‘odor of alcohol’ about my presence. I never drink and drive so I had that going on my side. I take medication and I could see the trooper working that angle. After I wrote the names of the medications for him I could see him on the radio in my rear view mirror checking to see if they were the kind that would cause puffy red eyes when abused.

He came up empty on that one. The meds I am on don’t cause that kind of reaction. The next line of questioning was what else had I put in my peace pipe that would make me like I was. I did’t have an answer for him yet he kept pushing me for an answer. There was no answer. It was one of those tough nights some of us have when tragic situations befall us.

After thinking about for a fair amount of time he finally popped the question.

“So do you think you can pass the roadside test for me?”

I am not sure what came over me but I knew I was in a heap of trouble by then and would soon be wearing silver bracelets.

“No one passes the roadside test!” I responded.

He did’t like my answer one bit, but he knew the tables had finally been turned.

“That is not true! He responded. I do a lot of roadside tests.

I could clearly see we both knew I was not going to pass the roadside test.

“I know”, I said. “I am an attorney.” The trooper gave up.

“Fine. I hope I don’t have to pack you up in a body bag down the highway.”

I don’t fault the officer for anything he did. He takes a lot of dangerous drivers off of the road and that is why some of us are alive today. What the officer did not know is I had already made up my mind what I was going to say if he asked me to take the test.

“I would rather not.” would have been my answer. Whereupon I would have been arrested and taken to the station for further examination. Why had I made the decision?

In Colorado, you grant the State express consent to examine your person upon loss of your license. The burden then transfers. You must prove you were not under the influence of an intoxicating substance rather than the State proving you were.

You can’t lose for winning sometimes.

Defense attorneys believe every person has the right to the presumption of innocence. You don’t have to self incriminate if you don’t want to. In Colorado you give up some of those rights as a condition of being granted a driver’s license. One right you still have, however, is to refrain from doing the walk, at least in Colorado.

So here it is. If you are asked to take a roadside test that is another way of saying you are getting a free ride in a State Patrol car. Let’s hope it is one of those souped up jobs many of us have been dying to get a ride in. You might as well have a few minutes of fun before they lock you up. In almost every case, you are going for the ride whether or not you do the roadside test. Since they can’t penalize you for not taking the roadside test you might as well pass.

If you make any protests abut the next tests, either a drug or urine tests, then you have violated your obligations under your license and you will be paying an attorney a lot of money. So if you elect not to take the road block do nothing to delay the transport process or that may be construed as a refusal to take the blood or urine test!

If you are drinking and driving get help before the red lights come on behind you. Alcoholism is an illness and alcohol is just a symptom of far more drastic problems. Try AA out, as many people have had wonderful success with the fellowship of people who have learned to live!

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