Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)

The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.

On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.

Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.