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The Right to Remain Silent in DUI Cases (A Cautionary Tale)

Attorney Michael Meehan
Attorney Michael Meehan

Opinions in blog posts are the sole opinions of the author and do not reflect the views or opinions of 1.800.NoCuffs and The Kavinoky Law Firm.

Everyone has heard of “ The Right to Remain Silent” as guaranteed by the Fifth Amendmentof the United States Constitution.  We all have seen on television when the police officer takes out a card and reads: “You have the right to remain silent.  Anything you say can and will be used against you in a court of law…”

When they are stopped for a probable DUI, many people will say, “The officer never read me my rights.”  That is correct; the officer generally will not do this.  The Miranda Warning and the Miranda Rights only apply to questioning that occurs AFTER a person has been arrested.  When the officer starts asking the usually litany of questions (“Where are you coming from?”, “How much have you had to drink?”, “When did you start drinking?” etc.) you may think you can answer the questions and then later have your answers thrown out because you were not warned that they would be used against you. Wrong. The courts have decided that these questions are all part of the “investigation.” Therefore, the officers do not have to read you your rights since you have not been arrested. Anything you say can and will be used against you.

Right to Remain Silent

This seems unfair, and it is.  So, if you are stopped for a DUI and the officer starts asking you questions, you should ask, “Am I under arrest?”  If he says no, then you don’t need to answer his questions.  If he asks you if you have been drinking, you should respond, “Am I under arrest?” This may upset the poor officer, who definitely feels that everyone he contacts should answer his questions and give him all the evidence needed to put them jail. The reality is, you don’t need to assist him.

How to exercise your right to remain silent

You are not required to assist the officer in any way, nor do you have to perform any field sobriety tests.  If the officer says, “You know, you are probably below the legal limit. If you just blow into this machine, I will let you go,” your response should be (I think you can guess), “Am I under arrest?”

Given how uncooperative you have been, the officer has two choices: (1) he can let you go on your merry way, or (2) he can arrest you for driving under the influence.  Now you may say, “I don’t want to get arrested for driving under the influence.” I don’t want you to be arrested either, but let’s assume the officer was going to arrest you anyway. By not helping him, the case will be very difficult to prove to a jury, and may not be filed at all.  Which is the better option?

Just remember that if the officer intends to arrest you for driving under the influence, you will not be able to talk your way out of it. However, if you confess to the officer that you had “two beers three hours ago,” this will only hurt your case and your chances in court.

You do not have to answer any questions once you are arrested either. However, your rights need to be read to you before you can be questioned.  If you ask for an attorney, your attorney must be present before you can be questioned.

If you are arrested for a DUI, you are not allowed to have an attorney present before you decide whether to take a chemical test(as required by the DMV in the case of a DUI arrest).

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