No person shall be compelled in any criminal case to be a witness against himself.
Aaron was stopped for speeding. When the officer got to Aaron’s window (which Aaron had rolled down), he asked Aaron “how much have you had to drink tonight.” Aaron did not answer. The officer asked Aaron for his driver’s license and proof of insurance. Aaron provided those. The officer asked Aaron what the rush was. Aaron did not answer.
The officer asked Aaron to step out of the car (he did) and perform field sobriety tests (he did not). The officer informed Aaron that “not talking and not cooperating will not get you anywhere but arrested faster.” He arrested Aaron on suspicion of DWI based on what he claimed was the odor of alcohol coming from inside the vehicle.
As required by Minnesota law, the officer read Aaron the Implied Consent Breath Test Advisory which informs him that if suspected of DWI, Minnesota law requires him to take a test to determine whether he was under the influence of alcohol and that refusal to do so is, itself, a crime. Aaron refused the test and was charged with DWI-Test Refusal.
Everything Aaron did was a valid exercise of his constitutional rights. In this country, we do not need to talk to law enforcement, even though we call them “the authorities.” In Minnesota, a driver has to produce a driver’s license and proof of insurance when asked because driving without either one is illegal. Otherwise, you are entitled to, and as a lawyer I advise you to, remain silent.
Remember: the Miranda Warnings state that anything you say can and “will” be used against you, not can and “may.” Why? Because the only way what you said to a police officer can get into evidence in a court is if it hurts you (a “statement against penal interest”); otherwise, it’s “hearsay” and cannot be used in court. Here’s a more thorough explanation.
Arresting someone for exercising his Fifth Amendment right to remain silent is blatantly unconstitutional.
Can you be forced to give testimony against someone else?
What if you’re subpoenaed to give testimony? The Fifth Amendment to the U.S. Constitution (and Art. I, §7 of the Minnesota Constitution) applies only to people charged with crimes. If you were in the car with Aaron, and you’re subpoenaed to testify against him, you have no constitutional right to refuse to testify, and doing so could put you in jeopardy of contempt of court. But that’s only at trial. In practice, the prosecutor, or whoever calls you to testify, would want a preview of what you might say and would try to interview you first. The Court can compel you to testify or hold you in contempt for refusal. A prosecutor cannot. I advise anyone who asks not to meet with prosecutors and witness preparers. You can’t give inconsistent statements if you only give one. And an inconsistent statement can be the basis of a perjury charge. Without diving into the politics, half the people charged with crimes related to the Trump campaign or administration were charged with telling one story to the investigators and another in court or two different stories to investigators. Here’s more on how an honest attempt to give straight-forward answers can get you in trouble.
If you’re subpoenaed and cannot give testimony because doing so may incriminate you in some offense, because doing so could be embarrassing or damaging to relationships, or it’s just too inconvenient, you can file a motion with the court to get the subpoena quashed (the most misunderstood word in law, Q-U-A-S-H-E-D, not “squashed,” and, certainly, not “squished”). In deciding whether to grant a motion to quash a subpoena, the judge has to weigh the importance of the person’s interest in not testifying against the importance of getting the testimony.
Why Should I Care?
“Don’t talk to police” is a mantra of mine. My business cards, my blog posts, and my website say, “My Lawyer Says Not to Talk to You.” But why? People ask me that all the time. “I’ve got nothing to hide.” “Why wouldn’t I cooperate with the police.”
Well, let me ask you this: a whole bunch of citizens defend their Second Amendment rights even though they’re vanishingly unlikely to take up arms against the U.S. government. Consider: would you rather defend your rights against government encroachment by defending your home against the Army’s 82nd Airborne Division or politely refusing to answer questions? Which is more likely to come up?
Do you have questions about when to talk to police and other government agents? Call me.
Barry S. Edwards Law Office: 612-310-7398