Mimesis Law
27 January 2022

Cop Talk: Why Police Officers Know That You Don’t Talk to Police

November 1, 2016 (Fault Lines) – In Oswego County, New York, last summer, a 2001 Audi was involved in a single vehicle accident. The first person on the scene said that Nicholas Smith, 34, was prone on the ground. The vehicle owner, Robert Thibault, Jr., 43, was in the back seat. The driver’s door was standing open. Although the New York State Police investigated, no one has been charged with drunk driving because the two people in the vehicle won’t admit which was the driver. And they likely won’t admit it, because Thibault is a police officer and knows better.

Thibault had several clues that he might be intoxicated, including disorientation, slurred speech, and bloodshot and glassy eyes. State police asked Thibault to provide a blood sample, and he agreed to do so. They didn’t ask Smith for blood, because it was Thibault’s car and they believed he was driving.

There’s only one small problem. Thibault won’t answer questions about who was driving, and Smith has, at various times, said he was the driver, and later said that Thibault was the driver. There is no way that the local District Attorney can show who was driving the car. That’s called reasonable doubt, and it will prevent Thibault from being criminally charged with drunk driving.

Thibault has been an officer for the Baldwinsville Police Department for about 10 years. He was the officer of the year in 2010. He’s an Air Force veteran, who is married and has children. And he’s smart enough to STFU when police are questioning him about a single car accident where the only other witness was the passenger.

One local attorney told the paper that normally the police would charge whoever owned the car with the drunk driving offense in such cases, but I cannot imagine that they would be able to get a conviction unless they could show, beyond a reasonable doubt, who was driving. You see, it’s not a crime to be intoxicated in a vehicle unless you are the driver. Passengers can be passed out drunk and not violate the law.

You occasionally see things like this, police officers being arrested for drunk driving. And officers, like other people, can’t get this through their head – don’t talk to the police. Don’t take the sobriety tests. Don’t voluntarily give breath or blood samples. And if the police don’t know who was driving, don’t tell them.

This is going to be difficult, because officers don’t like sobriety test refusals, and are usually under a mistaken belief that the citizen has to perform the tests. Guess what—you don’t have to do them. That doesn’t mean that the officer won’t be irritated, as in the video where a Texas attorney refuses the field sobriety tests[1] and the officer argues with him to try and get him to take the tests.

Not talking to the officer or refusing to perform the field sobriety tests does not mean you will not be arrested. On the contrary, you likely will be arrested.[2] In the below video, the driver wisely refuses to allow the officer to check his eyes, to conduct a test for horizontal gaze nystagmus. He also refused to answer questions when he was read his rights. He was still arrested, but this allows your lawyer to have other avenues to beat your case.

In a case like Thibault’s, you can perform the tests, because they cannot prove who was driving, and without that, there can be no conviction. The officer knows what to do because he knows what the other officers are looking for.

You don’t have to help the officer make a case against you. In other words, keep your mouth shut.

[1] Although an attorney, the individual in the video admitted to several drinks, and with that admission plus the driving factors, the officer had probable cause to arrest and to obtain a search warrant for the attorney’s blood. The attorney was ultimately convicted of DWI.

[2] If I couldn’t arrest for DWI, I would normally arrest them for the traffic violation, so I could get them off of the street.

6 Comments on this post.

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  • Scott Jacobs
    1 November 2016 at 8:12 am - Reply

    In many states (like Illinois) refusal to do the breathalyzer can result in an automatic 6 month suspension of your license.

    This is, of course, far better than a DUI conviction (and far shorter than the 5 year revocation if it is not your first DUI).

    • Greg Prickett
      1 November 2016 at 12:37 pm - Reply

      That’s the case in most states, and the suspension can be longer than 6 months. In some states it is a crime to refuse a breath test.

      You are absolutely correct that this is better than a conviction.

  • Sam Medley
    2 November 2016 at 4:21 pm - Reply

    Couldn’t they just grant Smith immunity and compel him to testify? Though, if he has been making inconsistent statements, his credibility might be shot by now.

    • Greg Prickett
      3 November 2016 at 3:45 am - Reply

      As you noted, his credibility is shot.

  • Cop Talk: Don’t Talk, Don’t Talk, Just Don’t Talk
    8 November 2016 at 7:51 am - Reply

    […] 8, 2016 (Fault Lines) – I just wrote about this subject involving an off-duty cop who was involved in a car accident. Ken White pointed out that shutting up should be your first […]

  • Terry Eaton
    29 January 2017 at 10:30 am - Reply

    They should have fingerprinted the steering wheel to see whose prints were on it.