This video was obtained by the Albany Times Union. The guy handcuffed to the bench is police officer Brian Lutz. Officer Lutz was apparently discovered sleeping in his vehicle on the side of the highway, door open, with a pile of puke next to the door. After failing the Field Sobriety Tests and blowing a .21 on a Preliminary Breath Test device, he was arrested. During the booking, he gets a visit from fellow Albany Police Officer Batchelor and Christian Mesely, the president of the Albany Police Union. Mesley tells Lutz not to blow (per the advice of an attorney) because his BAC was previously registered (on a very unreliable device) at .21 which would result in a charge of "Aggravated DWI" if his BAC was .18 or over.
Here is the link to the story and video:
http://www.timesunion.com/local/article/Video-Police-union-reps-coached-cop-during-DWI-1335890.php#media-2
As a DWI lawyer, people constantly ask me what I would do if I was arrested for DWI. Would I blow? Of course, there is no simple answer. Every DWI arrest is so exceptionally unique and the facts and circumstances vary so wildly that there is not a one size fits all answer. I will say this. First of all, I never drive in an intoxicated state or even an impaired stated but I would be lying if I said I did not "drink and drive" sometimes. That means that if I was pulled over after having "a couple", and I tell a cop that "yes, I had a couple", I will probably be arrested. If it happened to me I think I would refuse to blow for the reasons below: (Frankly, I would never admit to consuming alcohol if I was pulled over. Never, ever, ever).
First, I think most people are coerced in to handing over potentially incriminating evidence to the state (via blood to breath to machine) because they are led to believe their license will be "immediately" suspended by the arresting officer who reads the DWI refusal warnings to the suspect that say as much. That warning is a lie. The suspension is not immediate. The cops can't suspend your a license, only a judge can do that and most people, after arrested for DWI are released and issued an appearance ticket returnable to a court a few days after the arrest. So your license is not toast until you get in front of the judge. In a refusal case, the judge will suspend your license until a hearing is held at the DMV which must be conducted within 15 days, or you get your license back. Even if you lose the refusal hearing, you can still get a conditional license as long as you have not done the DMV drinking driver program within 5 years from the date of completion to the date of the new violation, or you do not have a VTL 1192 violation in the past five years. So in my situtation, because the arrest would be my first offense and I have never done the drinking driver program, I will be eligible for a conditional license, even if I refuse. Which basically puts me in the same position I would be had I done the chemical test. And in the meantime, I'll get myself a skilled DWI lawyer to punch some holes in the case. There is no such thing as a perfect DWI case and good lawyers can tear some cases to shreds.
In the Brian Lutz case, Officer Lutz performed the Field Sobrierty Tests and allegedly failed. He also did a preliminary breath test which showed .21%. I am always shocked that cops arrested for DWI cooperate to the extent that Officer Lutz did. He must know that a suspect has a consitutional right to keep their mouth shut, refuse to "walk the line", and refuse to blow on a roadside testing device. Maybe he was not aware or maybe he was just hoping the arresting officer would cut him loose when he cooperated. People, as American citizens you have an absolute right not to incriminate yourself. It is your right and protecting it is supposedly what our kids are losing legs for overseas. If you think cooperating puts you in a better position you are sadly mis-informed.
Finally, I am not going to finish this post with the admonition to never have a drink and drive. I think some DWI lawyers say that to make themselves feel better or for liability issues. But after doing this work for sometime, I am more concerned about the people who legally drink and drive and fall prey to the increasingly overzealous enforcement of DWI laws. Whether you like it or not, drinking and driving is not a crime. And I know that sounds cliche but the truth is that drinking and driving can only be a crime when the drinking driver has lost his physical capabilities to safely operate a car, (Or a boat or even a bike in some places. Or a motorized cooler, or lawn mower for that matter),or the driver has a BAC in excess of .08. In a refusal case, all the people have is circumstanial evidence that the defendant was drunk based on the officer's observations. If you pick the right jury, they can see through all the BS.
