Famed NFL quarterback Donovan McNabb was recently the subject of an owi investigation and has unwittingly provided valuable tips to the driving public. While for most the interest in the recorded investigation was the mere fact that a video was released as to the encounter between Mcnabb and police, for me the video recording proved noteworthy for a more instructive purpose.
As a defense lawyer for many years I have observed countless numbers of video recordings of owi investigations that have lead to arrest and prosecution. General themes customarily emerge as to how human beings attempt to persuade or cajole police investigators as to their innocence. Inevitably, traffic stops and dui investigations target drivers within all career fields and educational levels. Such stops do not discriminate between young and old, rich or poor. However, from an attorney’s perspective they can often appear somewhat predictable in the negative impact the driver’s attempts at persuasion can have in making an owi allegation far stronger for a prosecutor to prove within a court of law.
In the video clip provided I have no doubt that McNabb believes that he is undertaking a course of conduct that will allow him to move along from further police scrutiny. In fact, the officer in the video doesn’t even need to wait for McNabb to reveal that he is a famous former football player, the police officer eventually does the job for him.
Once the police officer suggests that he knows that his conversation partner is Donovan McNabb, the famous athlete probably let’s his guard down. Not only does the officer know it’s McNabb but he offers his thoughts as to how long McNabb has been retired from the National Football League.
Celebrities often view police officers or security officials as mere impediments to their freedom from unruly fans. They are conditioned to often be held to a different standard from the general public when it comes to an allowance to be excused from criminal conduct. As such, I have my suspicion that McNabb believes that his conversation with the police officer is one that is following a familiar pattern that McNabb has no doubt grown accustomed to. A discussion of what he’s doing now, perhaps the signing of an autograph, and in turn, the ability to go on his merry way free from the prospect of further inquiry that could lead to an owi arrest.
However, in this new age where police conduct has increasingly come under scrutiny there has been far less allowance for such informal banter between officer and celebrity, unless, as in this instance, such informality serves as an investigative tactic to gathering incriminating evidence that can bolster an arrest into inevitable prosecution.
In discussing his familiarity with McNabb as a football player he invites McNabb’s further dialogue as to head injuries that acknowledge potential impairment on McNabb’s part. Prior to submission to field sobriety testing McNabb speaks without being questioned in an unconvincing attempt to explain his actions and deflect from further owi related questioning.
Although McNabb appears somewhat courteous and non belligerent, his actions from a perspective of shielding himself from police inquiry and legal prosecution are perilously harmful.
As I have suggested elsewhere, one of the most important actions for a motorist in this instance is to never leave his driver’s seat during the course of initial questioning once a traffic investigation has commenced. One of the primary reasons for this advice is to prevent visual observation of physical movement that can provide probable cause for a lawful command to submit to field sobriety and breath/blood draw testing.
In this instance, McNabb is unwittingly doing the officer’s work for him. He is physically demonstrating unfettered physical movement to the officer, with his full body exposed for the officer’s perusal. While not always possible to remain free from visual observance during the course of an accident investigation, etc, the driver should not allow himself to demonstrate a freedom of movement such that visual observation can become an alternative form of preliminary sobriety analysis.
McNabb’s incessant verbal utterances are doing little for him by way of protecting his liberty. Conversely, the officer initially comments that he smells the odor of alcohol from McNabb. No doubt, McNabb’s continued talking has allowed the officer to firm up this suspicion of potential owi by being able to credibly assert that he had more than ample opportunity to smell McNabb’s breath.
Although I remain convinced that the generally courteous celebrity believed that his mere polite banter with a police officer would serve his legal best interests, he has, in fact, done himself a disservice that the reader can well learn from.
No matter whether a celebrity, a contributor to the local police union, or any other perceived connection one feels they may have with an investigating traffic officer, one lesson is universally true; the less talking the better.
The more you speak the greater the prospect you have to emanate the odor of alcohol from your breath. The more you speak the more you invite the inevitable suggestion of slurred speech, etc. The combination of odor of alcohol and/or slurred speech will be enough probable cause to get you out of the driver’s seat for more intrusive analysis in regard to physical impairment and ultimate field sobriety testing.
The driver’s compartment of your vehicle is your friend when assessed for drunk driving. If at all possible do not allow your physical coordination and movement to be scrutinized without the probable cause necessary to require field sobriety testing. A well informed motorist will understand that while questioned within a driver’s compartment a mere reach to a wallet and glove compartment for license and registration will be all of the physical movement customarily required absent other factors spoken of above.
Miranda warning are typically not as relevant to the disposition of owi cases as other criminal accusations. This is so due to the reality that owi prosecutions are more centered upon evidence of physical action and not verbal utterances. As such, the failure to recite Miranda warnings that may or may not prove to illicit incriminating statements will not customarily carry the day toward an owi dismissal.
However, although verbal utterances are by no means the primary source of evidence within the context of owi prosecutions, excessive speaking too often unnecessarily provides the physical evidence clues necessary to sustain a finding of probable cause toward the legitimacy of an owi investigation.
As our famous former athlete in question has demonstrated, excessive speaking and unnecessary displays of physical observation will do little to prevent an owi arrest no matter who is the subject of a potential owi investigation.