Right to Remain Silent?


Your Rights

One of the basic Constitutional Rights of every red-blooded American is the RIGHT to remain silent.  Ok, that’s not the exact words used, but that is what you need to remember.

You have the right to remain silent, but what remains to be seen is whether you have the capacity.

Holiday Weekend

This weekend is Memorial Day weekend and many of you will partake in the time-honored traditions of this holiday such as Barbequing, Boating, and Beer.  Some of you will even take part in the less honored tradition of doing one of the above three choices while driving.

That’s right. I’m talking about Drinking and Driving, or Driving While Intoxicated.  Although we’re going to discuss interacting with law enforcement during a DWI encounter, remember that your rights remain the same regardless of the alleged crime.

—See Intoxication and Alcoholic Beverage Offenses—Tex. Penal Code Ch. 49

The Investigation

We all know how it goes because we’ve seen Cops from time to time: “License and Registration?”  “Do you know why I pulled you over?”  “Where are you coming from and where are you going?”  “How many drinks have you had tonight?”

On TV, how many times have you heard them answer those questions?  NEARLY EVERY TIME!  Aren’t you amazed at how many people are so willing to take that Constitutional Right, wad it up, and throw it away?

—See United States Constitution—Fifth Amendment

One important note here, though, is that you MUST identify yourself if you are asked by the police.  You MUST provide your vehicle documentation upon request (registration, insurance, etc.).  However, all the other questions are meant to profile you and give the police probable cause to continue their investigation.

What Else Would They Think?

Think about it, when they ask where you’re coming from and you say that you are “headed home from the bar,” then they probably suspect that you’ve been drinking.

When they ask if you know why they pulled you over, and you say, “It’s because I was swerving a little back there,” then they probably suspect that you’ve been drinking.

When they ask you how many drinks you’ve had tonight, and you reply with any number above zero, then they probably suspect that you’ve had three drinks for every one that you admit to.

Do Not Feed the Bears

I am certain that you can tactfully avoid the officer’s questions by asking him why he stopped you, or some other maneuver to keep him focused on the reason for the stop that does not include telling him all of the juicy details of your night.  But I’m not going to give you a script to read during a stop.

My point is, by not answering their prying questions, you’re not going to help their investigation, which ends with them putting you in jail.  Trust me, during my time as a Reserve Police Officer, I was on the other side of this encounter. I knew what questions to ask and I knew who didn’t know how to protect their rights.  Remember that it’s not the police officer’s job to protect and preserve your rights. It is your job and they know it.

Plan Ahead

Don’t get me wrong, I am strongly opposed to drinking and driving. My legal advice to you is to don’t do it, but just because you’ve been pulled over by the police doesn’t mean that you have to give up your rights.

Many people will die this weekend at the hands of drunk drivers, and I sincerely hope that one isn’t at the hands of one of my readers. Please make the decision before you start drinking to arrange a cab or an Uber. I would always prefer that you sleep off your hangover in your bed instead of a jail cell.

Your Response

However, if you do find yourself under arrest for any reason, don’t be afraid to:

1.  INFORM the officers that you are remaining silent. (Yes, you have to break your silence to tell them that you’re remaining silent.)

2.  REMAIN silent.  Don’t just tell them you’re staying silent and then start feeding them information.

3.  CALL your attorney.  She can help protect your rights and serve as a shield from the police interrogation machine.

–Authored by Matthew L. Harris, Esq.,

 Matthew Harris Law, PLLC – Criminal Law Division

1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309

Tel: (806) 702-4852 | Fax: (800) 985-9479

[email protected]