Voluntary Statements that Unintentionally Incriminate a Person Should be Avoided

Interviewer: I guess it’s perceived that people sometimes say, “I couldn’t even do that if I was sober,” when in fact they believe themselves to be sober, and they are sober maybe, but they still say it that way. Can that be used against them, that statement on its own?

Paul Tafelski: It could be. Yeah, because it will be considered a voluntary statement where you’re not in custody yet at that point and you’re not being forced to answer any questions and you just blurt it out on your own.

You would not have any protection from your Miranda rights because you were not yet have even been read your Miranda rights, but in any event, when it’s a voluntary statement that you blurt out, they can use it against you, so yeah, that’s another perfect example of people digging their own grave when it comes to being investigated during one of these cases.

The Importance of Field Sobriety Tests is Relative to Each Individual Case

Interviewer: When you have it compared to the breathalyzer or even like a blood draw, the standard field sobriety test, how heavy does it weigh in a trial? Is that the most important thing or is it the least important thing or is it viewed equally as the other sort of tests that are administered to people?

Paul Tafelski: The real answer is it depends on your particular case. Every situation is different. Either if the client does very well in the field sobriety test, then that’s something that we make a deal about to demonstrate that they really were fine to drive and that probably this other breath test is therefore not accurate and must be unreliable because the client looks so good on the tapes, yet on the other hand, if the client doesn’t take any of those field sobriety tests, then they can’t be used against them. Then the last way is if they perform the field sobriety test and they look bad, then obviously that’s going to hurt you and you’re going to have some challenges to explain some of the reasons why you might have been performing so poorly, whether it be nerves or obesity or old age or knee problems, back problems, ADD.  Whatever the situation may be to explain why you performed poorly on those tests, you’ll have a bigger challenge.

If a Client Looks Good on Video while Performing FST, It is Going to be Easier to Convince a Jury that He / She is not Impaired

I guess there is another scenario where the client performs well on some portions and not so well on others. Every situation is going to be slightly different depending upon how they look on the tapes. It’s common sense: the better they look, the more likely it is you can convince the jury that they’ve not been drunk-driving.

A Physical Disability or a Medical Condition Might be a Mitigating Factor in a DUI Case

Interviewer: Is there anything that you would recommend a client inform you about as far as any sort of conditions they may have? You mentioned obesity and things along those lines. What other examples of conditions or factors?

Paul Tafelski: For example, some people might have pins in their ankle and you’re doing a one-legged stand on your bad ankle, that’s not going to be as easy for you as it would be for somebody who is in good shape, or somebody might have arthritic knees or a knee replacement or a hip replacement or one leg shorter than the other or they might have just had a disc fused in their back, maybe they’ve got diabetes and they’re experiencing low blood sugar or maybe they have problems with their eyes or they’ve had Laser surgery and the officer doesn’t know that they’ve had surgery on their eyes when they’re doing the horizontal gaze nystagmus test.

Typically we do review what the client, any medical conditions they may have, any medications they may have been prescribed or taken that day, and then we just analyze it in respect to all the other factors and our experience in these cases. All that stuff is relevant, maybe. It’s not always relevant, it doesn’t always matter, but sometimes that can be a missing piece or an explanation that could be very useful to us.

Posted in: Criminal Defense
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