It’s the hap-happiest season of all
With those holiday greetings and gay happy meetings
When friends come to call
It’s the hap-happiest season of all
Andy Williams is right. This is the hap-happiest season of all, unless one of the friends who comes to call drinks too much, gets in their car and drives away. That is when the most wonderful time of the year can become the most dreadful and tragic time of your life.
During my legal career, I have represented hundreds of clients who have been charged with operating a motor vehicle while impaired. While every case is different, I have formulated one hard and fast rule about drinking and driving based on my experience:
Do not do it. You could kill yourself. You could kill someone else. You could go to jail. You will spend lots and lots of money trying to stay out of jail.
I could and probably should stop right there, but I will continue because I know a lot of people will violate the Betras Rule between now and New Year’s Day. With that fact in mind, here are the steps you should take when blue-and-red lights are flashing in your rear-view mirror because you did not listen to your old buddy Dave.
First things first: Within moments of pulling you over, the police officer will approach your car, stick his or head through your window, shine a flashlight in your eyes, ask for your license and registration and then pose some variation of the $64,000 question: “Have you been drinking?”
Now pay attention, this is very important: You do not have to answer that or any other question. Tell the officer you are asserting your constitutional right to remain silent. In short: Shut up.
Unfortunately, most people do not exercise this fundamental right. Instead, they say “Well, officer, I only had a couple of beers.” I have no idea why folks believe those are magic words that will make the cop disappear when the phrase is actually an incantation that makes driver’s licenses and thousands of dollars disappear. Uttering those words gives the officer probable cause to proceed so please do not say them or anything else.
While you are not required to answer questions, you must exit your vehicle if directed to do so. If you refuse, the officer has the right to remove you, forcibly if need be, thanks to the Supreme Court’s decision in Mimms v. Pennsylvania. This is not a point to be argued, especially on the side of the road. If the officer asks or orders you to get out of your vehicle, do it.
You may also be asked to submit to a field sobriety test. You can and should refuse because you are not obligated to incriminate yourself. You may also be asked to blow into a breathalyzer in the field or at a police station. This is where things get complicated. You have the right to refuse to take the test, but doing so triggers an automatic one-year license suspension. On the other hand, if you take the test and your blood alcohol content (BAC) is .08 or higher you stand a very good chance of being convicted of OVI.
Which means there is only one answer to the question of “blow or don’t blow”: Abide by the Betras Rule and do not drink and drive. Sleep it off. Call an Uber. Call a friend. Call your dad, even if it means you will get yelled at. Believe me, I am a dad: I would rather drive to a party to pick up my inebriated kid than drive to the morgue to identify his body.
Think about that the next time you think about getting behind the wheel after you have had a few because a few is always too many.
— Attorney David Betras, a senior partner at Betras, Kopp & Markota LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you’d like answered here? Send it to firstname.lastname@example.org.