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The right to remain silent in a DUI case

The right to remain silent in a DUI case

If you only knew then what you know now!

You know that old saying, “hindsight is 20/20?” There could probably no more appropriate saying for DUI cases. Often my clients ask me should I have taken this test or taken that test, or should I have answered these questions? Obviously, if I were there to advise my clients prior to them being contact by the police, they wouldn’t need my services and wouldn’t be sitting there in my office. I have also heard many stories of attorneys almost disciplining their clients saying “you shouldn’t have done this” or “why did you do that?” That’s not really my style. I take the case as it comes to me and do the best to work within those circumstances. Most people feel horrible enough as it is with a DUI hanging over their head, why would I pile on their stress? I’m here to help, not make things worse.

What can I do?

For those of you who are reading this for informational purposes and have not had the unfortunate experience of being accused of a DUI, firstly I hope you never do, but more importantly here are some tips for what to do if you ever do find yourself in that situation.

Without fail, the officer will approach and ask something like, “do you know why I pulled you over?” or simply “license and registration.’ You must provide your driver’s license, registration and insurance information if asked. That doesn’t mean that you have to make any statements. You don’t have to guess as to why the officer pulled you over, you can simply hand him/her the documents and decline to answer any questions. Obviously, this is awkward and the police generally don’t like when people don’t answer their questions because it makes their job harder. But ask yourself, why do I care if their job is harder? Why would I help them gather evidence against me? This may make you uncomfortable, but I’ll explain later me out.

Do I have to answer their questions?

No! you don’t have to answer any of their questions with the exception of one! They are going to try to get you to answer all sorts of questions, “where are you coming from?” “How much have you had to drink?” “WHY AREN’T YOU ANSWERING MY QUESTIONS?!” etc. You can politely explain, with all due respect officer I do not wish to answer any of your questions. Again, this probably won’t go over well but it is your right. The only question you have to answer is if you are arrested and it is will you provide a breath or blood sample.

Do I have to take the field sobriety tests?

No! You absolutely do not have to take those tests. All they are designed to do is to assist the officer in gathering evidence against you. Sober people fail the tests. They are not easy no matter how well you think you can do on them. Nothing good will come from you taking the Field Sobriety Tests. In all my years of handling DUI cases and the hundreds of officers I have questioned, only ONCE, ONCE have I had an officer who knew how to properly administer and evaluate the Standardized Field Sobriety Tests. I’ve received the same, exact training they received in the academy and they never administer the tests correctly. They make up tests, they make up cues, they mis-evaluate the tests, you name it. Nothing good will come from you performing those tests. Again, why would you help the officer gather evidence against you? Why would you not exercise your Constitutional right to remain silent?

Do I have to blow into the breath test?

Here is where things can get confusing, especially if you’ve had too much to drink. In San Diego, the police carry a Preliminary Alcohol Screening device, PAS for short. This is not a evidential breath test. It is completely voluntary. You do not have to take this test! The reason this can be confusing is because there is an evidential breath test you would be required to take in order to avoid a refusal allegation along with the DUI. Chances are you’re scared, you’re nervous, you don’t remember the wise words in this article, only that you ahve to take a test to avoid losing your license for a year. Just opt for the blood test. Forget the breath tests entirely. It makes it easier to remember. I will not submit to a breath test but I will take a blood test.

Does this mean I won’t get arrested?

No! I promise you this, if they suspect you are drinking and driving (and you were), you are getting arrested with very few exceptions. When you take yourself out of this equation it makes sense. Put the shoe on the other foot. Imagine you are the police officer. You’re driving down the road and someone’s taillight is out. You stop that vehicle and when you make contact with that person you immediately smell alcohol. You ask for their license and registration and they say nothing but provide you the documents.

You ask, “have you been drinking tonight?”

They politely respond, “With all due respect officer I do not wish to answer any questions.”

You’re surprised and say, “I smell the alcohol coming from the car, I need you to step out of the vehicle and come around to me.”

As they are walking towards you, you notice nothing about the way they walk that sticks out to you. You then inform them that you would like them to perform some field sobriety tests so you can determine if they are OK to drive. You may even throw in a “if you are OK to drive, I’ll let you go.”

They respond, “With all due respect officer I do not wish to perform any tests.”

“Will you blow into this device so I can get an idea of your blood alcohol level?” You ask.

“I will not submit to a breath test but I will take a blood test.” Is their response.

At this point you have a decision to make. Are you arresting this person or not? Now if you have just been arrested for a DUI you’re saying to yourself, “Hell no!” But if you’re that officer, what are you going to do? Are you going to risk that a person you suspect has been drinking but refuses to provide you any additional information is OK to drive? You already know the answer to that. Imagine the uproar if the police officer let that person go and 3 miles down the road they crashed into a family minivan causing serious injuries or worse, death. Certainly you can see the merit in the officer arresting someone they suspect may be DUI in order to get them off the road. That’s what we expect our police to do. They are community caretakers.

Next comes the blood test after you’ve been arrested. The blood results usually take 2-3 weeks to come back, so you won’t know for almost a month what your alcohol level was but the DMV will proceed to take your license and you will already have a court date. The officer did his job and now we depend on the prosecution to do their job. If the result is low enough and your attorney is good enough, charges are never filed.

If DUI charges are filed, let’s say a .09. How do you think that case looks compared to the case where the driver says they had 2 beers hours ago, they were coming from X bar headed to a friend’s house, they failed every single Field Sobriety Test and the PAS result was .11, the chemical breath test was a .10 and the blood is a .09? See the point? It is much easier to defend a case with a simple blood result of .09 than it is to fight that .09 uphill with a bunch of other “bad” evidence.

That’s all well and good but I was arrested and I did everything they asked

You’re thinking great Chris, where were you before I got arrested? I get it. I don’t mean to make this sound like all is lost because you cooperated completely with the police. Far from it. Remember I said they never administer the FSTs properly, everyone that talks always says they had two drinks and it was hours ago. A good DUI attorney will be able to work with the facts of any case. The point is you have rights granted to you by the Constitution, you should know them and you should use them. There is no penalty for exercising your rights!

Call the Law Office of Christopher P. Sohovich today for a free consultation. (619) 304-8865.


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