Prosecution and Defense
Police officers have specialized training designed to teach them to intimidate and keep suspects off balance by use of commands, tone and phrases intended to “Beat You Down” emotionally, and thus keep control of a situation at all times. Most cops expect you to obey short, terse commands. Cops do not expect you to ask them to explain “why” they are making these demands. In trying to manage, direct and control your behavior, cops are better able to predict and control the outcome from the traffic stop. If the traffic stop is video or audio taped the cop will appear professional and you will look nervous, stupid and impaired, after which they will have no reason not to arrest you, despite your obvious cooperation. Beware of the following Cop Tricks.
1. Record by video or audio the statements, confession, and admissions of drivers at the scene.
Response: While this should be no surprise to many, some people are not aware that the police are commonly using video cameras to record the events of traffic stops. These cameras are mounted on the top of the dashboards of the police vehicles and may be swiveled 360 degrees and may even be recording people in the back seat of the police vehicle. The police can control the operation of this camera from a switch located on the belt worn by the officer.
On exceptional occasion, a dishonest officer will attempt to manipulate evidence by taping only the statements he wants heard by tampering with the audio switch, however this is rare. So presume you are being recorded and take advantage of this fact by turning the event into an opportunity to test the offers reasonableness and patience.
NOTE: Many police departments in New Jersey do not video tape DWI investigations and arrests. This is for very obvious reasons. The videotape doesn’t lie and speaks for itself. Cops sometimes fudge a little. Sometimes they fudge a lot although we hope they won’t. While we would like to think that our police are honest, objective and fair and all times nothing could be further from the truth. The DWI investigation techniques and practices are not honest, objective or fair. Cops are trained to use these DWI investigative techniques so they don’t know any better. They are brainwashed. The DWI investigation techniques and practices are “dishonest”, “subjective” and “unfair”. They test you for how “normal” you are by asking you to perform “abnormal” tasks under very stressful conditions.
2. Get the driver to cooperate in exposing eyes, face and nervous hands to the officer.
Response: When the police officer walk up to your vehicle: (1) have all the windows up; (2) have your drivers license, registration and proof of insurance. When the cop arrives he/she will tell you to roll down the window. Do so, but only lower the window about three (3) inches and say “I can hear just fine officer”. Do not make eye contact with the COP and continue looking straight ahead. The video camera, if it is working, may show your forward gaze from the position of the back of your head. If you have allergies, you should be careful not to expose yourself to unnecessary contact with allergy irritants by opening the window completely or getting out of the car. Many people carry paper masks or use handkerchiefs to prevent such exposure, so don’t be shy to protect yourself, just because the cop wants to ask a few questions.
The cop when he sees that you are masked or covering your nose will in all likelihood ask you to step out of the vehicle. He has authority to do that, but you may certainly ask to “stay inside while answering his questions, as you have allergies”. This should always be a truthful statement. Carry a handkerchief and use it as needed. There may be many other valid reasons to avoid exposure and covering your nose and mouth so as to avoid contamination or spreading infectious illnesses such as colds or flu. Just politely tell the COP what the reason is so that too will be recorded in his inevitable arrest report. Other good reasons not to want to leave the vehicle could include hurting or injured legs, ankles, knees or back from anything from arthritis, over-exertion or other physical condition. Be truthful with the COP about your circumstances. Because of his training, the COP will insist that you step out. You should comply with his request but you are entitled to complain, limp or continue covering your face, if you are actually experiencing pain or discomfort. Be polite and courteous when the cop asks questions, but NEVER answer any of his questions about driving, drinking or doing drugs even if the COP says he smells something “about your person”. YOU HAVE AN ABSOLUTE RIGHT NOT TO ANSWER ANY COP QUESTIONS. The cop will attempt to invade your personal space by getting close to you and shine a flashlight in your face. If this happens cover your eyes and respectfully complain out loud that “it hurts your eyes” if in fact it does. This is important as you want the COP to document in his report your actions. If the COP is fair, not very likely, he will write your complaints in his inevitable arrest report.
3. Get the driver to voluntarily submit to road-side Field Sobriety Tests.
Response: Again, the cop will likely say to take these tests for him “just to see if you are OK, to drive.” These tests will usually consist of (1) HGN (eye-examination/test); (2) Walk and Turn (heel-to-toe); and (3) One Leg Stand with count to thirty. Other exercises such as 4. counting backwards, 5. saying A-B-C’s and 6. counting fingers are also used by some officers. However, they are not “standardized” and have fallen into disuse. These “dog and pony shows” will only amuse the COPS at your expense, and be used against you at trial, so NEVER perform them.
Response: If you think you want to try and do the field tests the following is suggested. Cops will ALWAYS tell you to assume a particular position for each test. Even with the eye test (HGN) he will tell you to stand still and not move your head. Tell the COP that “you do not want to take any positions for any of the tests until the officers has fully demonstrated them to you.” After he does demonstrate them, Ask him/her, “how long did it take you to learn how to do that?” Whatever the officer says then ask “How much practice will I have before I do the final test?” The officer will not allow any practice per his training, and when he tells you so, say, “That doesn’t seem fair, so if they are voluntary, I will take them after I get as much practice as you got.” By this time, you will have so frustrated the officer from his regimented DWI investigation procedure he may even say something really stupid which he will regret if the judge or jury hears it. You can only hope that if this happens the video camera is working properly. However, don’t be surprised in this type of situation that the video camera just mysteriously happened to not be working at the time of your DWI investigation.
4. Threaten to arrest you if you don’t cooperate and submit to field sobriety tests.
Response: Surprise! The cop is likely going to arrest you anyway! If the COP thinks, imagines, hallucinates, speculates, guesses, hears about from some third party you weave in the road, and after the traffic stop smells alcohol, sees bloodshot eyes or any other symptoms of alcohol or drug impairment whether real or imagined, YOUR DONE! The cop will arrest you because he is required by law that you be under arrest for DWI in order to give you a breath, blood or urine test.
However, in New Jersey, the cop cannot force you, under pain of driver license suspension, to submit to breath, blood or urine tests if you are not under arrest for DWI! This is the reason for the elaborate road-side investigation: cleverly guiding you to voluntarily give evidence i.e. field sobriety tests and admissions, he doesn’t have so he can arrest you for DWI. The cop might appear foolish if he arrests you for DWI after you have passed the FST’s. However, if you give the COP the evidence he needs at the scene, you just made his job a lot easier and provided evidence, which you don’t have to provide, that could help lead to your conviction for DWI. Simply, the cop is going to arrest you if you refuse the FST’s. That’s fine. Remember, you have to be under arrest in order for the cop to be able to legally give you the breath, blood or urine tests.
If you don’t give them the FST’s and/or admission evidence, at the scene, the state will have a much more difficult time getting a conviction later at trial. Don’t submit to any road-side tests! In New Jersey, field sobriety tests (FST’s), usually HGN, Walk and Turn, and One Leg Stand are completely voluntary and you can use this to your advantage.
5. Ask You To Take A Voluntary Breath Test With A Hand Held Device.
Some cops will ask you to take a preliminary breath test to “see if you are ok to drive” or some other excuse. They could ask you right after they stop you, after they give you the FST’S, or right after the DWI investigation has been completed.
Response: Tell the cop that you are not going to take the test. Do not confuse this breath test with the other breath test which you must submit to or face a 12 month driver license suspension. How you tell the difference is that the cop must read you the implied consent admonition prior to giving you the test.
