Another case of a police officer arrested for DUI who refuses all tests

As a DUI defense attorney, people always ask me, “should I perform the tests?”  And my answer is, do what police officers do.

From the Chicago Tribune:

A Woodstock police officer faces arraignment in March for driving under the influence after he crashed his pick-up truck in Round Lake Beach about two weeks ago.

The officer was identified as Michael E. Niedzwiecki, 29, of Lake Villa, who was charged with DUI and failure to reduce speed to avoid an accident, according to a Round Lake Beach Police Department report.

The accident occurred Feb. 11 at 1:49 a.m. on Hainesville Road when Niedzwiecki’s 2007 Ford F250 pick-up went out of control while traveling northbound on a curve close to Clarendon Drive and struck a telephone pole, according to the report, which added that power lines knocked down by the crash blocked northbound traffic on Hainesville between Rollins Road and Clarendon.

According to the report, Niedzwiecki told one of the officers at the scene that he forgot about the sharp curve to the left in the roadway, and that is why he lost control of his truck. The report added that both Niedzwiecki and a woman who identified herself as his wife went to a nearby McDonald’s after the accident and before police arrived to get help.

The officer wrote in the report that Niedzwiecki was slurring his words and had glassy bloodshot eyes and an unsteady gait. “I could smell a strong odor of an alcoholic beverage,” the officer wrote.

When an officer asked Niedzwiecki to do a field sobriety test, Niedzwiecki refused and when asked to submit to a breath test, which he also refused, according to the report, and he was placed under arrest for DUI and was also cited for failure to reduce speed. When asked to make a statement about the accident, Niedzwiecki refused again, the report states.

According to the report, at one point, Niedzwiecki showed an officer his Woodstock police officer badge and identification card.

Read the whole story here: http://www.chicagotribune.com/suburbs/lake-county-news-sun/crime/ct-lns-woodstock-officer-charged-dui-st-0225-20170224-story.html

If a police officer does this when arrested for DUI, shouldn’t you too?

An off-duty Hammond, Indiana police officer was pulled over by a State Trooper and the Trooper suspected that alcohol was a factor.  What did the off-duty cop do?  He refused to perform field sobriety tests or take a breath test.  What does he know that you don’t?

From the Chicago Tribune:

A Hammond police officer was charged with operating a vehicle while intoxicated early Saturday morning after an Indiana state trooper observed him veer across lanes of traffic on Interstate 65 and nearly drive off the road, the Indiana State Police said.

Mathew L. Anderson, 30, of Hammond, was arrested shortly after 2 a.m. on State Road 2, just south of the Indiana State Police post, after the trooper followed him as he exited from I-65, a news release from the state police said.

The trooper was making a traffic stop on I-65, just north of the Lowell/Hebron exit in Lake County, when he saw a 2007 Honda Civic “that had just passed in the left lane veer abruptly over to the exit ramp to (State Road) 2 while nearly (running) off the roadway, traveling completely onto the right shoulder,” the release said. “It was so abrupt the female driver of the traffic stop also observed the vehicle and stated, ‘Oh my God!’ ”

The trooper followed the car onto westbound State Route 2, watching as the driver weaved on the road and drove on the right shoulder, the release said.

When the trooper pulled Anderson over, he identified himself as a Hammond police officer and said he had weapons in the car, the release said. The trooper said he could smell alcohol on Anderson’s breath, but Anderson refused to take a Breathalizer test or field sobriety tests, according to the release.

Anderson was charged with two counts of operating a vehicle while intoxicated and one of unsafe lane movement.

Take it from Officer Baez; when given the chance, just say no

The most common question that I get, as a DUI attorney, is whether or not to take a breath test in the event of a DUI arrest.  Of course I say don’t.  But you don’t need to take my advice.  You can simply emulate the actions of most of the police officers who find themselves on the wrong side of the breath testing device.

For example, here is a link to a story about a former Prairie Grove police officer who is currently on trial for a DUI that occurred while on duty.

As is the norm for cases like this, the officer refused to take a breath, blood or urine test to determine his blood alcohol concentration.

From the Tribune:

A former Prairie Grove police officer admitted on the witness stand Thursday that he drank two plastic cups of eggnog before his Nov. 29 shift, which ended when his police SUV slammed into a pole and the officer was charged with driving under the influence.

But Oscar Baez, 52, of Bensenville, said he drank the eggnog about four hours before the start of his 3 p.m. shift. He also testified that he is not typically a drinker but just wanted to “taste it a little bit.”

In additional to misdemeanor DUI, Baez also is charged with felony official misconduct and disobeying a stop sign.

Baez sought to explain why he failed a portion of the roadside sobriety exam that involved tracking with his eyes a pen being moved from side to side. Baez said he had surgery on his eye as a child and has a weak eye muscle for which he wears corrective lenses. He had taken his glasses off before the sobriety exam.

McHenry County prosecutors allege that Baez was under the influence of alcohol when his vehicle crashed into a utility pole near the intersection of Illinois Highway 31 and Gracy Road about 10:30 that night.

Baez, however, said he crashed because his brakes failed and “went all the way to the floorboard” as he approached the intersection.

Responding officers testified earlier that Baez told them at the scene that “those glasses of eggnog must have been bigger than I thought.”

The officers said they smelled alcohol on Baez’s breath, that he slurred his speech and swayed during the sobriety test and that he was chewing breath mints. On the stand, Baez said: “I always have mints on me. I have some now.”

Baez also contradicted earlier testimony from police officers who said he refused to go to a hospital to submit blood and urine samples. He did acknowledge that he refused a breath test, saying he was “frustrated” knowing by that time that he was being arrested and charged with a DUI.

Baez resigned from his job the following day. He was a police officer for about nine years.

In other testimony Thursday, Martin Pireh, a paramedic who arrived on the scene and examined Baez for injuries, said he did not smell alcohol on Baez’s breath.

Baez was smart to refuse.  He had no way of knowing what his BAC would turn out to be. Now the trial judge will have to decide whether the state can prove beyond a reasonable doubt that he was driving while intoxicated, without the benefit of a breath or other test, and with conflicting testimony between the arresting officers, Baez and the paramedic.  I would not be surprised to learn that Baez’s gamble paid off.

The McHenry County judge hearing the case will make his ruling on November 3rd.

U.S. Supreme Court to determine whether states can criminalize DUI test refusals

In Illinois, the only consequence for a DUI suspect who refuses to take a blood, breath or urine is a license suspension which is longer than the suspension he or she would receive had he or she taken and “failed” the test (and there is no suspension for someone who “passes” the test).

However, thirteen states make it an additional crime for a person to refuse such a test.  The Minnesota law was recently struck down but the case, and two others, have been taken up by the United States Supreme Court.

From SCOTUSblog:

In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.  The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.  Thirteen states make it a crime to refuse to take a drunk-driving test….

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration.  It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving.   In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving.  The cases to be reviewed by the Court involve either a blood or breath test.

Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision.  And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling.  The Supreme Court, at its private Conference on Friday, considered thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.

The three apparently were chosen because they involve different legal scenarios: in two of the cases, the individuals were convicted for declining to take a test — one a blood test, the other a breath test. In the third case, the individual was convicted of drunk driving after he refused field sobriety tests and then was taken to a hospital for a blood test against his wishes.  The Court will be reviewing that individual’s punishment for refusing the field tests — a two-year suspension of his driver’s license — instead of the jail time and fine he got for the drunk-driving conviction.

The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota.  The three will be consolidated, and will be heard together at a one-hour hearing.