“You have the right to remain silent”, yeah sure…
You’ve just been arrested for DUI. And, like in the movies, the officer reads you the “Miranda” rights: “You have the right to remain silent”, he tells you, “You have the right to an attorney”
And then the very next thing he asks if if you’ll take a breath or a blood test.
Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those breathalyzers accurate? Would a blood test be better?
Well, you think, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide whether to take a test or not, and which one I should take.
So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. “Are you refusing to take a test?” he asks darkly. “I just want to talk to my attorney,” you reply. “Your funeral,” the officer says.
Now, what did he mean by that?
What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as “consciousness of guilt”.
Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common — what is called “officer-induced confusion”. Three apparently contradictory things are communicated to the (confused and very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you — without speaking with an attorney. What would the normal person conclude?
Well, let’s take a closer look at the laws involved here…
First, the so-called “implied consent” laws say that a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to “remain silent”, or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known “DUI double standard”).
As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, “You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two”. (As we say, “the DUI exception to the Constitution”.)
What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test
Translation: tough luck all around. Granted it’s all very confusing, and the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.
Lawyer’s Perceived Trustworthiness Down
Thanks to Brian Tennebaum’s post on his blog with this Gallup study:
U.S. Clergy, Bankers See New Lows in Honesty/Ethics Ratings
Police officers’ image recovers
PRINCETON, NJ — The percentage of Americans rating the honesty and ethics rating of clergy as very high or high is down to 50% in 2009, the lowest percentage it has been in the 32 years Gallup has measured it.

Gallup conducted its annual Honesty and Ethics of professions poll Nov. 20-22 this year, with one of the major findings the deterioration in ratings of members of Congress. Nurses continue to rate as the most highly regarded profession in terms of honesty and ethics.
“In addition to the clergy and bankers, ratings of stockbrokers have hit a new low, and ratings of business executives, members of Congress, and lawyers have tied their previous lows.”
In last year’s Honesty and Ethics update, 56% of Americans rated the clergy’s honesty and ethics very high or high. The reason for the decline to 50% this year is unclear; but now the clergy’s ratings are below where they were earlier this decade during the priest sex-abuse scandal. Ratings of the clergy dropped from their 2008 levels among both Catholics and Protestants, as well as among regular and non-regular churchgoers.


Still, ratings of the clergy remain high on a relative basis, ranking 8th of the 22 professions tested this year. The same cannot be said of bankers, whose ratings tumbled last year from 35% to 23% in the midst of the financial crisis, and fell further this year to a new low of 19%. As recently as 2005, 41% of Americans gave bankers high honesty and ethics ratings.

More broadly, 2009 was not a kind year in terms of how Americans rate members of various professions. In addition to the clergy and bankers, ratings of stockbrokers have hit a new low, and ratings of business executives, members of Congress, and lawyers have tied their previous lows.
Most of the 13 professions measured in both 2008 and 2009 show a decline, and only police officers’ ratings improved by a meaningful amount. Ratings of clergy declined the most — six points — followed by lawyers, with a five-point drop.

The 63% very high/high ratings for police officers are their best since 2001 — shortly after the Sept. 11 terrorist attacks — and the second highest in the 30+ years Gallup has asked about this profession. Over time, ratings of police officers have generally risen, though they were down below 60% the last three years.

Until this year, Gallup had asked Americans to rate the honesty and ethics of “policemen,” but this year conducted an experiment to see whether asking the gender-neutral phrasing “police officers” would produce the same results. A random half of respondents were asked to rate “policemen,” and the other half “police officers,” with both wordings producing similar results (62% and 64%, respectively).
Gallup also found deterioration in the honesty ratings of several other professions that were last measured in 2006. The most notable decline occurred for state governors, whose ratings are down seven points, from 22% in 2006 to the current 15%. This change could in part be attributed to recent sex scandals involving former New York Gov. Eliot Spitzer and current South Carolina Gov. Mark Sanford.

The new poll also documents significant decreases in the evaluated honesty of dentists and psychiatrists since 2006. Additionally, the four-point decline in ratings of senators over this time period leaves them with a new low rating, similar to the pattern Gallup reported earlier for members of Congress.
Bottom Line
Americans’ ratings of the honesty and ethics of members working in several professions have established new lows in 2009, with the ratings of clergy and bankers lower now than at any other point in the last three-plus decades. And while Americans rate most professions more poorly than in their prior measurements, certain professions such as nurses, pharmacists, doctors, police officers, and engineers have maintained a high level of confidence from the American public.

