The Do’s and Do-Not’s of Searches and Search Warrants

police stop search

When you are arrested and accused of a serious crime, panic sets in. It’s easy to make poor decisions in the heat of the moment.

Many people think they know what to do when confronted by law enforcement officers, but it’s a whole different story when you’re actually standing in front of a police officer, being accused of a crime. It’s almost impossible to be ready for the tough decisions you’ll have to make.

So what should you do if an officer asks to search your vehicle or give you a breathalyzer test?

In today’s post, I’ll go through the do’s and do-not’s of police searches and search warrants and help you understand your rights.

How Do Police Searches Work?

Law enforcement officers are trained to use intimidation to get people to comply with their requests. A police officer’s request to search without a warrant is a prime example of this use of intimidation, which most people give in to, despite knowing better.

constitution of the united statesThe Fourth Amendment to the United States Constitution, grants citizens the right to be free from unlawful search and seizure. This means the government, including law enforcement officers, can’t unreasonably deprive anyone of their privacy rights.

In other words, police officers can’t search anything they want and take anything they want, just because they are law officers.

That would be a violation of your constitutional rights.

This is the reason why search warrants exist.

Police officers can only obtain a search warrant when they think there is “probable cause” to believe they will find something specific based upon objective facts they have considered.

Officers are required to swear to the accuracy of all those facts in front of a judge before they can obtain a search warrant, which would lawfully deprive a citizen of constitutional privacy rights.

This all means nothing if you agree to allow an officer to search your property or belongings without a police search warrant.

Should I Ever Let an Officer Search Without a Warrant?

The only way an officer can legally search without a warrant is if you give your permission. A verbal consent to search is all an officer needs to search basically anywhere they want.

Don’t agree to a search. Law enforcement officers must be held to higher standards. If an officer knows something will be found, they can get a warrant and search AFTER a judge has confirmed that there is enough evidence.

Don’t let an officer intimidate you and suggest that you should give them permission to search. You will face greater penalties this way.

Refuse permission to search and force them to get a warrant if one is justified.

Searches in DUI Cases

pulled over

Photo: dwightsghost on Flickr

Police search warrants are important in drug possession cases, but even more important in DUI situations. If you consent to giving a blood or breath sample, you have already given up most of your rights and made the officer’s job very simple.

No officer can force you to take a breath test, let alone exit your vehicle, without probable cause.

Submitting to field sobriety tests or any other chemical tests means you are consenting to a search of your body. Remember, your body is also protected under your constitutional right to privacy.

Know your rights and make law enforcement obtain a warrant before you submit to anything. In a DUI case in Montana, there are only very few situations in which an officer can get a warrant to draw blood from someone who refuses to consent to give it. Thus, in the majority of situations, the officer will not even be able to get a warrant.

If you consent to such a search, you are giving law enforcement officers evidence they would not be able to obtain on their own and would not even be able to get a warrant to obtain.

judnich law

Protect Your Rights

Knowledge is power, and citizens need more knowledge. You have the right to privacy, so don’t allow intimidation factors to make you give up those rights.

Ensure a law enforcement officer obtains a legal warrant before invading your privacy. If you think your privacy rights have been violated, I can help.

Give the Judnich Law Office a call at (406) 721-3354 or contact us to learn more.

Court Appearances & Trials: What Can You Expect?

What Happens Next: Trials & Courtroom Appearnaces

Being arrested and charged with a crime like a DUI can be confusing, stressful, and terrifying. A lawyer will help you understand the process and provide guidance and insights that will help you to make the best possible decisions.

But what if you don’t have a lawyer yet? Or what if a loved one is involved in a criminal case? How can you help? What can you do? Start by reading today’s post, where I’ll help you understand the process of court appearances and trials and what you can expect.


Criminal Trial Arraignment

After you’re arrested, your first court appearance is known as an arraignment. The presiding judge will read you your rights, as well as any possible penalties for any and all criminal charges. You’ll then need to enter a guilty or not guilty plea.

If you plead guilty – you will be sentenced right then and there. You may have the opportunity to explain your situation to the judge and have him or her take your unique circumstances into consideration, but if you plead guilty with an explanation your case will not be dismissed. You are pleading guilty – don’t expect the judge to understand and then make your charges go away, that will not happen.

With few exceptions, pleading guilty is a very bad idea. If you plead guilty, it is very rare to be able to undo that and plead not guilty later. Your case will be over and you will accept whatever punishment the judge gives you, with no opportunity to speak to the prosecutor, look at the evidence or negotiate a known plea outcome.

Pleading not guilty allows you to explore your options and better understand your rights. You no longer have any rights after you plead guilty.

If you plead not guilty, the court will transfer your case into what is known as a contested case. A prosecutor will be assigned to the case and your criminal matter is assigned a cause number.

The judge will then likely set certain conditions of bail. Bail will allow you to stay out of jail while your case is pending. When it comes to DUI and related charges, it is not unusual for the Court to order you to not drive, be subject to some type of daily alcohol monitoring and other restrictions. This can include a SCRAM ankle bracelet or some type of pre-trial probation where you must pass a breath test up to twice a day.

Omnibus Hearing

The Omnibus Hearing or “OMNI” hearing is the second hearing after your initial appearance. This is a scheduling hearing where you usually have to be present.

At the hearing the Prosecution will tell the court whether they have provided all the evidence to the defense. The Defense will tell the judge if any pretrial motions will be file and if so, briefing schedules are set.

The Omnibus hearing does not take very long, and the Defendant does not have to say anything, they must simply be present. The judge will also likely set the dates for a final pretrial hearing and the trial date at this hearing.

Change of Plea Hearing

A Change of Plea Hearing only occurs if the Prosecution and Defense have reached a plea agreement.

At this hearing, the Defendant will plead guilty to the crimes outlined in the negotiated plea agreement. In most misdemeanor cases the Defendant will change their plea and be sentenced at that same hearing.

Once the Defendant is sentenced the case is over and the Defendant must comply with their sentence which may include jail time, fines, probation, or other conditions. In some cases, a Defendant will have to go to the probation office that day and provide a breath, urine, or blood test and begin other terms of the plea agreement.

In Felony cases, after a change of plea hearing, the Defendant will need to go to the Felony probation office (that same day) to complete paperwork for what is called a Pre Sentence Investigation or PSI.

A PSI is a document probation prepares for the Judge. A PSI provides the judge with the entire background of the Defendant and helps the judge determine if probation is an appropriate sentence for the charges included in the plea agreement. There is a lengthy questionnaire that must be filled out as well as an in person interview. Your entire criminal history will be explored by the probation department.

Often, a Defendant will be tested for alcohol or drugs after a change of plea hearing, so be prepared for that.

Sentencing Hearing

Signing Legal Paperwork

The Sentencing Hearing for misdemeanor crimes usually happens at the same time they change their plea. However, in Felony cases a Sentencing Hearing is separate and usually takes place 2 months after a change of plea hearing. The reason for the delay is to prepare the PSI in felony cases.

The Sentencing Hearing is when the judge actually imposes a sentence. It is also considered the day a Defendant is actually “convicted” or your conviction date.  

After the sentencing date the court does not have any further hearings and the Defendant is expected to complete their sentence.

If probation is a condition of a sentence, the Defendant must be prepared to stay in the city that they are sentenced in, even if they live out of town. The Probation Department is the only agency that can allow travel at that point, and often they will not allow a Defendant to travel out of town until everything is checked out and they have met with the Defendant.

Defendants that live out of state must attempt to enter into an Interstate Compact agreement where they can transfer their probation out of state from Montana.

That process is not immediate and can take several days to several weeks to complete.

Final Pretrial Hearing

If no plea agreement has been reached, a Final Pretrial Hearing will be one of the last hearings conducted before a trial date is actually set. This hearing usually happens 3-4 months into the case, but can take longer than that due to continuances.

Often this date is used as a cutoff date to accept any plea agreements. Typically, after this date a judge will not accept any plea agreements and the defendant will either have to plead guilty to the charges or go to a trial.  


Courtroom Trial

A trial occurs if no plea agreement can be reached. A Defendant may have either a jury trial or a judge trial. In a jury trial, 12 jurors (plus alternates) are selected and the Defense and Prosecution present their evidence for the case. In a judge trial, the decision of guilt or innocence is left to the presiding judge.

Trials can often take at least several days and are held in the actual courtrooms that are open to the public. After all evidence is presented, the judge or jury will consider the evidence and find the Defendant guilty or not guilty. A third possibility, known as a hung jury occurs in a jury trial when the jury is unable to reach guilty or not guilty verdic.

If found not guilty, the Defendant walks out of the court and the case is over.

If found guilty, the judge will set a sentencing hearing and the Defendant will be sentenced on the crimes found guilty of.

If a hung jury occurs, the Prosecution has the options of trying the case again, or simply letting the case go and not having another trial– in essence the Defendant’s charges are dismissed.

No lawyer can ever guarantee a positive outcome to any trial and the final decision is in the hands of the jury members or the presiding judge.

What Should You Do Now?

Judnich Law Office

If you or someone you care about is facing criminal charges, the first thing you need to do is find a lawyer you can trust.

At the Judnich Law Office, we’ve been representing clients in Montana for nearly 20 years. We have the experience you need to help guide you through all of your court appearances, including a trial.

We’ll help you make the best decision and fight for your rights. We can help negotiate a plea agreement for DUI’s and other criminal charges, but we know that a trial may be necessary and are willing to go the distance for all of our clients.

If you’d like to know more, call us at (406) 721-3354 or contact us to learn more.

Photo Credits: Wikipedia, Caitlin Child, Clyde Robinson

Why Sober Drivers Can Fail Field Sobriety Tests

why sober people fail field sobriety tests

In our last post, we discussed the Horizontal Gaze Nystagmus (HGN) test. That’s just the first of three standardized field sobriety tests that the National Highway Traffic Safety Administration (NHTSA) uses to determine if someone is under the influence of alcohol.

In this post, we’ll look at two more standardized field sobriety tests: the Walk and Turn and the One Leg Stand.

The Walk and Turn Test

This is a divided attention field sobriety test, which means that a person under the influence of alcohol is not supposed to be able to perform the test correctly, because alcohol intoxication will not allow a person to divide their attention.

Original research revealed that this test, when properly administered and scored, was only 68% accurate in determining if someone was under the influence of alcohol. That means it was incorrect 32% of the time. Yes, in ideal circumstances, when performed exactly as instructed, this test was wrong 1/3 of the time. Not a very good indicator of whether someone is actually under the influence.

Several problems exist with the Walk and Turn test, including the fact that it is nearly impossible to perform correctly the first time, sober or not. Here’s how the test works:

The officer will ask you to stand in an uncomfortable position while you listen to the instructions for what to do. If you break that stance, it is a “clue” that you are impaired. While holding a balancing stance, the officer will instruct you to perform many, many tasks. What’s more, officers are taught to give these instructions in rapid order, which makes them hard to follow and remember. Any mistakes you make are additional “clues” that you are impaired by alcohol.  

Here’s what the officer will ask you to do:walk and turn sobriety test

  • Walk the line, heel to toe, for 9 steps,
  • Turn in a specific manner,
  • Keep your arms at your sides,
  • Look at your feet,
  • Count out loud,
  • Don’t stop walking,
  • Count in the proper order,
  • Keep your feet on the line, and
  • Return 9 heel to toe steps to the start.

Can you remember all that? The reality is almost nobody hearing these instructions for the first time can remember everything and do it exactly right. There is just too much information in this test.

Now imagine trying to do it all under the stress of having just been pulled over and accused of driving under the influence.

To make it even harder, police officers also won’t tell you what they are looking for. Even worse, some officers will tell you what not to do, which can get confusing when trying to remember all the instructions. During the Walk and Turn test, the officer will be watching for a total of 8 clues to determine if you are under the influence.

woman taking field sobriety test

For example: The picture above is a woman performing the Walk and Turn test. Most tests are now recorded on video, but in this still picture, she is currently showing two “clues” of intoxication:

  • Her heel is not touching her toe, and
  • Her arms are raised from her side.

She is also wearing heels that are over 2” in length, so she should have also been offered the opportunity to take her shoes off to perform the test. She should also not be holding her purse during the test. A police officer who has your best interests in mind, will consider those factors, and give you every opportunity to pass the test and prove you are not intoxicated.

The One Leg Stand

one leg stand field sobriety testThe third and last standardized test in the NHTSA battery of field sobriety testing is the One Leg Stand or OLS test.

This is another divided attention test. Original research revealed that this test, when properly administered and scored, was only 65% accurate in determining if someone was under the influence of alcohol. If you remember, the Walk and Turn test was only 68% accurate. Thus, the OLS test is the least accurate field sobriety test of the three. It’s incorrect 35% of the time, which means, in ideal circumstances, when performed exactly as instructed, this test was wrong more than 1/3 of the time.

There is also a specific category of people who were not represented in the scientific studies behind this test. Therefore, the One Leg Stand test doesn’t have legitimate scientific support for some of the population.

The test is essentially very basic, but very difficult if you don’t have great balance. Again, the officer will give you rapid fire instructions on what to do. You are expected to do everything as instructed. For example, if you “sway” for balance, the officer will take that as a clue you are intoxicated.

Give it a try right now:

  • Raise either foot approximately 6” off the ground, keeping the bottom of the foot parallel to the ground.
  • While looking at your foot, keep both legs straight and arms at your sides.
  • With the raised foot in the air, count out loud from 1 to 30, saying, “One thousand one, one thousand two, one thousand three…” and so on, until the officer times you for 30 seconds.  

There are a total of 4 clues an officer is looking for during this test to determine if you are under the influence, including raising of the arms, swaying, hopping, and putting the raised foot down.

Problems With Field Sobriety Tests

court gavel trialThere are many problems with these field sobriety tests. The science behind them is flawed, and they are designed to be very difficult — even for someone who is sober.

In fact, police are specifically taught that even sober people may have difficulty with these tests.

The majority of police officers will not give you proper instructions before either test. And most officers who try to demonstrate a test to you will actually show “clues” of intoxication themselves.

However, officers are also taught “cheats” that allow them to pass the tests more easily if they are asked to demonstrate in court. They don’t afford that luxury to anyone accused of DUI.

Only an experienced attorney who knows the small complexities of these tests, the scientific studies behind them, and how the officers are trained can actually use them to your advantage if you are accused.

What To Do If You’re Accused

How much of the information in this post did you already know?

Unfortunately, many DUI defense attorneys don’t know it either. This is exactly why, if you or someone you know wants premier DUI defense, you must seek an attorney who knows what he is talking about.

I personally have dedicated myself to becoming the most advanced DUI defense attorney I can be.

I have taken specialized training, exactly the same training law enforcement takes, which teaches the NHTSA manuals on law enforcement DUI detection in the United States. This specific knowledge is key to knowing how the officers were trained, what they are looking for, and how to catch them when they mess up, which they do.

judnich law team missoula

For example, in a recent case an officer attempted to administer the Walk and Turn test upon one of my clients. I was able to establish that, because the instruction and administration of this test was so incompetent, the test results must be excluded from evidence.

Bringing to light an officer’s incompetence in administering and scoring these tests at trial is another great way to show that, just because someone is accused of DUI, does not mean they actually committed the crime, nor that the officer collected evidence in the correct way.

If you want premier DUI defense for a DUI charge, give me a call and I will personally discuss your case with you and see if our representation can help you out.

Martin Judnich, Esq.

President, Judnich Law Office


Photos: Scott L, SanDiego DUIAttorney, SanDiego DUIAttorney, Beth Cortez-Neavel


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