Under the 5th Amendment, you do not have to consent to speak with the police or answer any of their questions. You do have the right to remain silent. No matter how much you might be intimidated, coerced, threatened, or promised better treatment, you do not have to give up your right to remain silent. Many people convict themselves with their own mouths. You can tell the police that you wish to assert your right to remain silent. That cannot be used against you.
Also under the 5th amendment, you have the right to a lawyer before you are questioned or during questioning. You can assert your right to a lawyer by asking for one. If you want counsel, do not use equivocal language like “maybe.” Speak definitively. “I want a lawyer and I want to speak with a lawyer in private.”
Under the 4th amendment, you do not have to consent to warrantless searches without a valid exception to the warrant requirement. Many people erroneously and foolishly consent to searches that otherwise would have been unlawful. The police may give you the impression that you have to consent or that you should consent, but you do not have to consent to searches. If the police ask for you to do something or give them something, and you think you have to do it, you can tell them that you will comply with their lawful orders, but are not doing so of your own free will, and are not consenting.
If the police are knocking or banging on your door, you are not required to open the door, or even answer, unless they say that they have a search warrant. If you do open the door and the police start to walk in, if you want to preserve your rights, you should clearly state that you are not consenting to their entry or any searches.
Under the 4th amendment, the police do not have the right to stop or seize you unless they have reasonable suspicion or probable cause that you have committed a crime. If an officer walks up to you or is approaching you, you can walk away unless they tell you to stop. If an officer asks you to stop, or to come to them, or speak with them, if you want to preserve your rights, you can ask them if they are ordering you to stop or just asking you. Let them know that you are not consenting to stop or engage with them, but are only stopping if they are ordering you to do so, and have a valid constitutional basis to seize you. If they say or do something which makes you feel that you cannot leave, you should make it clear that you are only stopping and not leaving because you are being made to feel that you cannot leave. Otherwise they will argue that it simply was a consensual encounter and that you were free to leave. Let them know that you would leave otherwise. Ask them if you are free to leave. If an officer tells you that you are free to leave, do so immediately. If they will not allow that, you can ask them why not and ask them to state what is their constitutional basis for stopping or seizing you – that is, what are the facts they have in their possession that constitutes reasonable suspicion that you have committed a crime. You may also ask them when and how they learned the facts. Once their reason for stopping you has been resolved, you can ask to be allowed to be released and be on your way. If they continue to detain you without additional reasonable suspicion of crime, that continued detention may be unlawful. Remember, you have the right to remain silent and not consent to searches.
You can always tell the police that you will comply with their lawful orders, but wish to assert your 5th amendment right to silence, your 5th amendment right to a lawyer, and your 4th amendment right not to be subjected to warrantless searches or seizures.
Under Iowa law, Iowa code section 804.20 gives any person who has been taken into custody the right to a phone call to an attorney or family member, without unreasonable delay after arriving at the place of detention. You also have the right to meet and consult with an attorney alone and in private in person. If you have been taken into custody, and you want to speak with someone, you must ask for a phone call to a lawyer, and you should ask for privacy to speak with your lawyer in person. If your lawyer shows up to the police station, unless you are a violent threat, they must allow you to meet confidentially with your attorney. Remember, if you want to exercise your rights, you should ask for the phone call to your lawyer and/or family member, and ask for privacy.
When it comes to OWIs in Iowa, drivers are considered to have impliedly consented to give a specimen for testing of alcohol content if certain circumstances apply. Although you do not have to consent to give a specimen, there are consequences for a refusal of the implied consent test (after the officer has read you a form telling you the consequences of a refusal)(this does not include the hand-held preliminary breath screening test – PBT – typically conducted in the field). Usually, if you refuse the test after the officer has read the implied consent form, the duration of your license revocation is double the length it would be even if you had tested and were over .08. For example, for a first offense, if you are over .08, your revocation is 180 days (c. 6 months), but if you refuse, the revocation is 1 year. The revocation periods are longer for 2nd revocations and 3rd revocations. Prior .02 revocations count against you as well. Also, for first offenses, an implied consent test refusal renders you ineligible for a deferred judgment. However, an implied consent test above .15 also renders you ineligible for a deferred judgment. Whether your consent or refuse, and how high your test result is also impacts your access to a temporary restricted license if you are revoked. See the OWI section. However, there are some situations wherein it can be in your best interest to refuse the breath test. Remember, you can always ask to speak with a lawyer before making your decision about whether or not to consent. See 804.20 rights above.
You also have the right to request an independent test if you think it gave a falsely high positive. You can ask for another breath test, or for a test of your urine or blood if you are certain no drugs will be in your system and you believe the result will be lower.
You are not legally required to perform field sobriety tests – the one leg stand, walk and turn, or the horizontal gaze nystagmus test (follow finger with eyes) – they are all voluntary and there are no legally required consequences for refusing those tests. You also are not required to consent to a drug recognition expert’s (DRE) examination of you. Many believe that DRE exams actually are junk science.
If you are going to take the preliminary breath screening test (PBT), the hand held breath testing device usually administered in the field, if you have consumed alcohol within the last 15 minutes, you can let the officer know that and ask that he or she wait 15 minutes so that mouth alcohol can be eliminated from your breath and it will not give a falsely high reading. However, you do not have to say or do anything if you don’t want. Although PBTs typically are admissible for public intoxication charges, the PBT test result is not admissible at trial in the OWI context. The hand-held in-field PBT is not the implied consent chemical test, the latter of which is admissible at trial. The chemical test, more often than not, is the datamaster breath test offered at the police station.
If you have any questions, contact your local Iowa City / Cedar Rapids lawyer, Adam Pollack.