To begin with and to be clear, neither the firm nor I encourage drinking alcohol in excess and you should never drink alcohol (or take any substance that impairs your ability to drive) and then operate a motor vehicle. It is dangerous and you could hurt and kill yourself or someone else.
The “legally drunk” blood alcohol limit in Alabama is 0.08% or higher, if you are 21 or older, which has been lowered from the previous levels of 0.12% and 0.10% by the Alabama Legislature.
If you agree to take a breath test and your blood alcohol is or exceeds 0.08%, it is presumed you are too intoxicated to drive a motor vehicle safely. If you feel the need to drink daily and can not stop, you should seek help from someone immediately, much of the help is Free. The most effective way to avoid a charge of DUI is very simple, if you drink alcohol or take any substance that impairs your ability to drive, do not drive.
Please be mindful that the below is speaking to your rights under the U.S. Constitution only, which is general information and is not legal advice nor any attempt to evade any law or ordinance, nor instruction to you how to act or behave. The Constitution and this page is meant to protect innocent, law abiding citizens from government overreach. Each person must take action in their best interest. If you have specific questions involving a specific case, you should seek out and hire a qualified attorney who can help you if you do not feel you have an adequate understanding of the law. Constitutional rights help protect you, they do not give you a right to complicate situations or assert your personnel feelings.
There are situations where you will find yourself being arrested or where you will encounter law enforcement and, possibly, encountering law enforcement personnel who are not trained well or do not know the law adequately. Knowing your rights can make a very big difference in the outcome of your case, especially if law enforcement mistakenly believes you are intoxicated and you are not. The best way to protect yourself is to buy and install a simple dash camera that turns on automatically and runs at all times when you drive, they are relatively inexpensive and very effective in protecting you. Some start
at just $20 and plug into your cigarette outlet.
So, what are your rights as a citizen of the United States if you encounter law enforcement?
- First and foremost, understand that a large number of law enforcement personnel are simply trying to do their job and the right thing, you should always be courteous and polite to them, if possible. Many take great pride in their responsibility. You too have a right and obligation (some say) to invoke your constitutional rights to protect yourself, in any situation, but do not provoke law enforcement or attempt to goad government personnel into debates, arguments, or situations.There is no reason to intentionally harass anyone, including the police. During an encounter with police is not the time to vent your frustrations about government matters. Your (and my) tax dollars pay for all government time, so only interact with them as long as is necessary, it is illogical, dangerous, and quite wasteful to provoke law enforcement and anyone else (and sometimes it is illegal which can subject you to arrest and prosecution).Good, well trained law enforcement personnel will never “bend the rules” to make their case, and they certainly won’t break the law. Good, well trained law enforcement personnel know they do not need to evade your rights and the constitution to make their case, especially if you have truly broken the law. If you have truly broken the law and intervention is necessary, law enforcement has a myriad of tools and avenues to pursue their case (and they DON’T need your consent or help to make their case). Law enforcement exists only to enforce the law, that is all, nothing more. After all, if law enforcement personnel don’t adhere to the very laws they are sworn to enforce, their actions too are illegal. As the saying goes, “two wrongs do not make a right”.While I believe a citizen has an obligation to protect their rights, also understand that law enforcement have a dangerous job and they need to remain in control of most situations until they fully understand what is going on. Do not test your luck even if you think you are right, always avoid a situation if possible. Allow the police to do their job of responding to crime and removing truly unsafe persons from society. I have personally worked as a police officer and know many good and honest police officers, deputy sheriffs, and agents who believe in the law and want to do what is right, fair, and good and who will respect your rights if you simply invoke those rights.
- You DO NOT ever have to answer questions posed to you by law enforcement, at any time, ever. If under arrest, you must be read your Miranda rights upon arrest. Under the 5th Amendment to the U.S. Constitution, you have a right to remain silent and not incriminate yourself. If you respond to law enforcement questions, you are generally doing so voluntarily and you are waiving your 5th amendment rights. If you remember your rights later after questioning starts, do not worry, you may invoke your 5th amendment rights and also ask for an attorney at any time when speaking with law enforcement. If law enforcement continues to attempt to question you after you decline to answer questions, immediately ask for an attorney and a supervisor. Never answer questions posed by law enforcement unless an attorney is present.-Remember that an officer or investigator is welcome and allowed to ask you anything they desire but YOU are under absolutely No obligation to answer any questions by the police, ever. There is no situation when law enforcement can force you to answer their questions. Once you inform law enforcement that you want to remain silent or want a lawyer, they MUST STOP questioning you immediately.If you do not remain silent, you could give law enforcement the evidence they need to arrest you. Always remain silent if possible, even if awkward. Police may continue to attempt to get you to speak or respond and may even threaten you but remain silent. Police often tell you to “help them” or “let them help you”, this is a red flag to remain silent.
- ALL field sobriety tests are VOLUNTARY. You are not under any legal obligation to submit to any field sobriety tests. If asked by law enforcement to perform these voluntary tests, simply and politely decline to submit to any tests or requests and decline to answer any questions. If arrested, simply identify yourself and refuse any tests and questions.-Remember that all of the information an officer needs to prosecute his case against you, he needs to obtain from you. You DO NOT have to disclose if you have been drinking or where you are going nor where you have been. You are best advised to never answer questions from a law enforcement officer unless an attorney is present with you.-Keep in mind that if an officer has probable cause to believe you are intoxicated, he or she can require you to submit to a breath test. When obtaining your license in Alabama, you signed an implied consent agreement stating you agree to take a breath test under certain circumstances. A refusal of this test can allow the Alabama Department of Public Safety to suspend or revoke your driver’s license for failing to comply with the implied consent laws even if you are not intoxicated. Breath tests are administered by a machine, machines make mistakes and can be wrong. You have the right to request your OWN independent test, at your cost.If an officer orders you to exit your vehicle under threat of arrest or for his safety, roll up all windows, secure, and lock your car. DO NOT leave your doors or windows open. Tell the officer that you do not consent to any searches and do not want to answer any questions and are only exiting at his/her order, under duress.
- You CAN REFUSE searches of your vehicle or person and personal effects. Refusal is NOT grounds for arrest or detention. You can voluntarily allow a search but you can also refuse, the Police NEVER need your consent (and won’t ask) if they have a legal ground to perform their search. There are certain exceptions to this rule if you are arrested or if exigent circumstances exist. If stopped by law enforcement and you are asked if an officer may search your car, you, or your bags/effects; politely and courteously say No if you do not want to be searched, they must respect this right. You have a right under the 4th Amendment of the U.S. Constitution to be secure in your travel and not subject to any unreasonable searches and seizures. You never have to consent to a search that is legally allowable or is an exception. This means there is absolutely no reason for law enforcement to ask to search unless they need your permission. Generally, if law enforcement is asking for your consent to search, they are in need of it to search. Otherwise, there is absolutely no reason for them to ask you for this authority.An officer has the obligation to obtain the proper warrant if probable cause exists and he/she desires to search and does not have a reason. Refusal to allow a search is NOT probable cause and is NOT a reason for you to be detained.An officer is NOT required to tell you that you can refuse a voluntary search, you must assert this right on your own. If you refuse a search, immediately ask if you are free to leave and leave if allowed to do so.Simply and politely inform the officer that you will not consent to a search but if a warrant is obtained, you will comply with any warrants so issued. If the officer tells you he will, “Call for a [drug] dog” if you don’t consent, immediately ask for an attorney and a supervisor and continue to decline. You may not be detained and threatened with a “free air search” for refusal to consent to a search. The officer must be able to “reasonably articulate” his suspicion of drugs if he desires a dog search. If you give consent and then remember your rights, invoke them immediately, you CAN CHANGE YOUR MIND and retract any consent already given to a search at any time and law enforcement must stop their search immediately.
- What if an officer asks to see my identification in a public place and I am not under arrest and not driving? You are only required to present identifying information IF you are under suspicion of having committed a crime (in Alabama) and the officer must tell you if you are under suspicion or if you are being detained or arrested. Code of Alabama, 1975 § 15-5-30: “A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.” You may always ask for the officer’s name and ID number.-If you are driving a vehicle and are stopped for a traffic infraction, you are under an obligation to produce your driver’s license and your proof of insurance. If you are carrying a concealed weapon permit, also present that permit. Keep in mind that proof of insurance can be a picture of your insurance card but, be careful, unlocking your phone could allow an officer access to information that is protected. Recent Supreme Court rulings have found that the police MUST have a warrant to access information on your cellular telephone and other mobile devices. The police CAN NOT order you to unlock your phone under threat of arrest or other threats.-If you are carrying a concealed weapon on your person or in a vehicle, in Alabama, you must have a permit to do so, issued by the Sheriff of the county you reside in. The permit is honored state-wide.-You may ask the officer if you are under suspicion of a crime and are you being detained, if he/she says “No”, ask if you are free to go and if you may leave, if the officer says “Yes” and you are sure they said yes, walk away or drive away immediately. If you are viewing a scene as a bystander, witness, or filming, or otherwise, stay a safe distance away as to not interfere with the officers involved. So long as you are legally there, law enforcement can not force you to leave nor can they stop you from filming and audio recording an event in public. You are also under no obligation to allow an officer to view or otherwise inspect your phone, camera, or any other device so long as the property is yours or legally in your possession.There is no law that prohibits recording with a camera. You are allowed to video record and audio record you interactions with law enforcement. Sometimes, a recording is the only way to prove your case or exonerate you.You are best advised to record all interactions with law enforcement to preserve the evidence for court, if necessary. Law enforcement record many interactions with “dash-cams” and body mounted cameras.In public places, such as the street, there is no expectation of privacy by anyone, including law enforcement and government officials. Police routinely use this exception to search “in plain view” or make an arrest. Law enforcement can not assert their right nor another person’s civil “right to privacy” in public, especially if they are attempting to stop your recording. Recording law enforcement actions alone is not interfering with any operations but do keep a safe distance as to not interfere. Good, honest, and well trained law enforcement generally are proud of their work and will not attempt to stop your recording but do be reasonable and refrain from obnoxious manners such as placing a camera into someone’s face.
Never audio record any telephone conversation that you are not a party to, 18 USC § 2511.
-If stopped (in the U.S.) by U.S. Immigration or Border Patrol, you DO NOT have to answer any questions, including giving your nationality, this INCLUDES information requested at “road-blocks” and “immigration check-points”. Again, the 5th Amendment applies. If you are believed to be breaking the law, law enforcement can arrest you. Refusing to answer questions is not grounds for arrest nor does it create probable cause. U.S. Immigration and Border Patrol can NOT force you to disclose if your are or are not a U.S. Citizen. You can politely decline to answer any questions and ask if you are free to leave. Officers may only detain you if they believe and can articulate why they believe, 1) you are an illegal alien, AND 2)you are in the country illegally. The Supreme court has ruled that U.S. Immigration or Border Patrol can conduct uniform, consistent stops to find law violations but they must be consistent in who they stop, they can not single out individual persons.
NOTE: It is important to note that refusing to answer questions and refusing to allow a search IS NOT and does not create reasonable suspicion nor probable cause for law enforcement. Refusing to consent or refusing to waive your rights is never grounds to be detained or arrested.