Legit DUI Bust or Harassment?

A Tale of Suspected DUI—or of Inexplicable, Apparently-Random Harassment by Law Enforcement, Depending on Whom One Believes

By Ken K. Gourdin

Some time ago, a thread was started on the Findlaw message board entitled “Accused but didn’t do” by the mother of a man accused of driving under the influence (DUI). See the discussion here (last accessed August 18, 2016):


She states her son drove while he was tired in order to pick up his girlfriend from work. (Those dang women’ll get ya in trouble every time!) She states he struck a guardrail and did not report the incident. She states that after he had been home for three hours and had only drank alcohol after coming home, the police showed up at his door, “harassed” him, and “did not ask him certain questions that they were supposed to.” (She doesn’t elaborate on how they “harassed” him on what the questions they should have asked but didn’t are.)

She states she believes “the police were looking for someone who did something else,” “saw his car [in the driveway],” and “tried to pin it [sic] on him.” She doesn’t say what the “something else” is or why that “something else” caused police (apparently arbitrarily) to suspect her son of (an apparently unrelated?) DUI. She doesn’t say what, if anything, might’ve led the police to her son: Does he have a history with local law enforcement? Does he have a history of DUI? Or did local law enforcement simply pick his name at random out of the local phone directory? (Apparently, she believes it is the last of those three possibilities—or something akin to that.)

And while someone who is accused is innocent until proven guilty, evidence may give police probable cause to investigate further (and to develop further evidence) by mandating that a suspect submit to, e.g, a blood alcohol test.

I responded:

In the interest of full disclosure, I am not a lawyer, and I do not live in (nor am I familiar with) the laws of Pennsylvania. I hope you’ll forgive me for playing “Devil’s Advocate”: it may seem, based on my questions, as though I suspect your son is guilty, but my intent is to help you better understand some of the potential issues relating to your son’s case. You do not indicate precisely what you mean when you say that the police “harrassed” your son, so it is difficult to tell whether their conduct crossed any lines.

The propriety of the police making your son take a blood alcohol test would depend on what evidence, if any, they had regarding the earlier incident involving his collision with the guard rail. (You don’t say what the result of the blood alcohol test was; are you prepared to testify that the result of the test was due only to alcohol he consumed after coming home? Did you (or did someone else) actually see exactly how much alcohol he consumed? If so, in order to counter that testimony, the prosecution likely would call an expert in alcohol dissipation rates in an effort to prove that your son had consumed too much alcohol for a positive test to result merely from alcohol he consumed after coming home).

Was there any damage to the vehicle he was using when he came home, such as paint transfers from the vehicle to the guardrail (or vice-versa), or other damage which could correspond between the two (such as dents or scratches)? Although you say he told you he did not drink before he came home, a court likely would say that your testimony to that effect is inadmissible hearsay. What that means is that witnesses who have no more direct evidence than what a person tells them generally cannot testify to what the person tells them in court.

Although he told you he did not drink before he came home, there probably would need to be more evidence of that assertion than your word alone. Have you talked with anyone else who can verify your son’s whereabouts and that he did not drink before he came home? Are you sure that no witnesses have (or could) come forward to state that, in fact, your son had been drinking, and that he may have been legally intoxicated before getting behind the wheel? If you know witnesses who can verify your son’s whereabouts and lack of alcohol consumption before arriving home, how reliable are they? (For example, were any of them drinking, even if he did not?)

You state that the police didn’t ask your son certain questions they should have without specifying what those questions were. Your son may be able to argue that his Fifth Amendment constitutional right against self-incrimination was violated if, in fact, the police didn’t have probable cause to force him to submit to a blood test. However, that would depend on the answers to the questions I pose above regarding any potential evidence that may exist which indicates your son did, in fact, drive under the influence. If you’re referring to a Miranda Warning (“You have the right to remain silent,” et cetera), that warning generally only applies to anything your son might say while he is (1) in custody and (2) under interrogation. Both of those conditions must apply in order for the Miranda Warning to be needed. You don’t state whether the police arrested your son and took him into custody before questioning; if they did not, Miranda likely doesn’t apply. And Miranda only applies to what, if anything, your son says; he may have a right to remain silent, but his blood, his car, and the guardrail do not.

It is difficult for anyone to watch a loved one have an encounter with the criminal justice system, especially when that person is a loved one’s mother. If the answers to the questions I pose above indicate that your son did not actually do what he is accused of, I would consider contacting another attorney. If, however, they indicate your son may have a problem with alcohol, perhaps this encounter with the criminal justice system is a blessing in disguise which will help him get the help he needs.

I wish you well.


About kenngo1969

Just as others must breathe to live, I must write. I have been writing creatively almost ever since I learned to write, period! I have written fiction, book- and article-length nonfiction, award-winning poetry, news, sports, features, and op-eds. I hope, one day, to write some motivational nonfiction, a decent-selling novel, a stage play, and a screen play.
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