(This post applies only to persons over the age of 21 or who are not on probation for a previous DUI.)

What should you do if you are stopped while driving a vehicle and the cop suspects you are driving under the influence of alcohol? The laws that govern a DUI stop provide you with less rights than you would have during an ordinary police contact. The premise underlying this diminished due process on a DUI stop is that driving on California roadways is a privilege, not a right, and therefore you are not afforded all the protections provided in the Constitution. But you still have certain rights when you are stopped on suspicion of DUI.

When you are pulled over for suspected driving under the influence, you are considered detained and you are not free to go. Even though the officer has not yet read you your “Miranda rights,” which is not required until you are arrested, your right to remain silent is triggered at the time of the detention. You must provide the officer with your driver license (and car registration) but beyond that you do not have to answer the officer’s questions. As with any police detention or arrest, your best approach is to be politely cooperative and provide your identification, but to let the officer know that you wish to remain silent.

Most people intuitively believe that if they answer all of the police questions, they will be treated more leniently whereas if they decline to answer the cops, they will be treated harshly. It is against the law for a police officer to respond in either fashion. People will often respond to the cop’s questions such as have you been drinking with answers such as yes, but only one glass of wine or only two beers and so on, thinking this will convince the cop they are not under the influence. This is a mistake. It will not convince the cop of anything and will be used against you if you are arrested and charged.   Most often, when you answer the officer’s questions, you are providing them with more evidence to use against you, even when you think your answers are exculpatory.

If the officer suspects you are under the influence, he or she will ask you to perform a field sobriety test. These tests are the touching your nose with your eyes closed, standing on one foot, walking as straight line kinds of test. The officer won’t tell you that performing field sobriety tests is completely voluntary and truth is, most people are unaware that they are not required to perform these tests . It is a good idea to politely tell the officer that you do not want to perform these tests. Why? Because if the officer suspects you are under the influence, he or she will most certainly make the subjective determination that you failed the field sobriety tests. (And who wouldn’t? Even if you are completely sober, those tests can be hard to perform.) Don’t think you can pass these tests, even if you are not under the influence, and then be on your merry way. The field sobriety tests are used by the officer simply as a tool to bolster their evidence.

The ultimate goal for the officer is to have you submit to a chemical test, which at the time of the stop will be a breath test. You must submit to the chemical test only if the officer places you under arrest for driving under the influence. Before the officer arrests you, however, he or she must have probable cause to believe you are driving under the influence. In other words, the officer must be able to point to objective factors such as slurring words, the smell of alcohol, stumbling and so on. If you refuse to submit to the chemical test after you are arrested, you will be subject to additional penalties including the automatic suspension of your driver license for one year (on a first-time DUI; more on subsequent DUIs).  You cannot refuse to submit to the chemical test by claiming you have the right to an attorney before doing so. While you do have the right to an attorney after you are arrested for driving under the influence, that right does not extend to delaying the chemical test.

In my next post, I’ll discuss what happens when you are arrested for driving under the influence.

William Weinberg has extensive experience defending those who have been charged with driving under the influence. Please feel free to contact him to set up a confidential consultation without charge at www.bill@WilliamWeinberg.com or by phone at (949) 474-8008.