Should I Remain Silent When Pulled Over for DUI?

The Fifth Amendment to the United States Constitution has been found to include that you have an absolute right to remain silent and not incriminate yourself during your arrest and booking process. This right applies to everyone, is true in every state, and it is true even if you are an alien or an illegal alien.

Once the arresting officer has read you your Miranda warnings, your silence after receiving the advisement cannot be used against you in court.

You need to tell the officer(s) you have made the choice to remain silent. This does not mean that you should not be appropriately polite with the law enforcement officers, using such terms as “please” and “thank you.” Beyond providing the police identification information such as your name and address, and showing them your driver’s license, you do not have to answer any questions relating to why you were arrested.

If you began answering some questions and decided that the questions are likely to incriminate you, the Miranda warnings also allow you to cease all answers if you demand to have your lawyer present.

If your stop was based on the officer’s “reasonable suspicion,” the police officer has the right to expect you to identify yourself, and to have you produce your driver’s license. Police officers receive training, including mock trial practice, during which they must recite sufficient information to support their decision to arrest a suspect. The training has led to officers spouting off a litany of these “common” symptoms of apparent intoxication so that the officer can survive a pre-trial motion to suppress challenging an arrest decision that lacked proper justification.

A good DUI defense attorney will argue lack of clear evidence of impairment if these symptoms are missing.

One handbook written for prosecutors and police officers provides this list:

The following facts and circumstances, not all of which will be present in any given case, are relevant to establish whether a person’s driving ability was impaired, as demonstrated by indicia of observable intoxication and field “sobriety tests”:

Alcohol symptom checklist
— Smell of alcohol
— Impaired fine motor control
— Impaired gross motor control
— Slurred speech
— Change in speech volume
— Decreased alertness
— Excessive sweating
— Slow or shallow respiration
— Inappropriate sleepiness
— Changes in rate of speech
— Bloodshot eyes

Other factors possibly relating to observable signs of intoxication
— Erratic operation of motor vehicle
— Defective balance (e.g., staggering, stumbling, swaying)
— Disheveled clothing
— Flushed or pale face
— Lack of coordination (e.g., staggering, fumbling with license)
— Impaired memory (e.g., forgetting where registration is)
— Impaired judgment
— Impaired sight or hearing
— Unusual attitude (e.g., hilariousness, combativeness)
— Unusual physical acts (e.g., vomiting, belching, hiccupping)
— Lack of awareness of surroundings or time of day

Factors relating to alternative explanations for indicia of observable intoxication
— Type and operating condition of vehicle
— Operator’s familiarity with vehicle
— Sickness or injury at time of occurrence in issue
— Recent blows to the head
— Recent treatment by doctor or dentist
— Use of prescribed drugs or medicines
— Use of substance giving alcohol or beverage odor (e.g., mouthwash)
— Physical disabilities or defects (e.g., back condition)
— Pathological conditions having symptoms in common with those of alcoholic influence (e.g., diabetes, epilepsy)
— Speech defects (e.g., lisping, stuttering)
— Activities preceding occurrence in issue
— Fatigue

Additional factors relating to field sobriety tests
— Type of procedure administered
— Precision of officer’s directions
— Understanding of directions
— Performance by subject
— Nervousness of subject
— Presence or absence of witnesses
— Scoring of tests and preservation of evidence (e.g., on videotape)
— Quality of officer’s memory
— Quality of subject’s memory
— Time and place of administration of procedure
— Factors affecting coordination (age, weight, training)
— Clothing worn by subject (e.g., high-heeled shoes)
— Characteristics of standing surface and location of procedure
— Lighting, particularly stroboscopic or flashing lights
— Other circumstances surrounding administration of procedure

Source: Kwasnoski, John B., Stephen, John, & Partridge, Gerald, Officer’s DUI Handbook, Lexis Publishing (1998) at 3.

Category [C] above is a list of explanations (excuses) that officers sometimes ask the driver about in order to eliminate these alternative reasons for the bad driving or inability to perform field evaluations that has been observed. Remember that an officer WANTS to hear your speech patterns to determine if your speech is slurred, thick-tongued, disorganized or otherwise “impaired” sounding.

Certain drugs will also cause thick-tongued or very slow, halting speech patterns. If an officer can address any possible excuses for such symptoms during the first part of his or her conversation with you, it is more likely that you will not be able to assert a viable explanation of your errant driving or your unusual speech patterns when the case comes to court. Again, you should REMAIN SILENT.

When an officer approaches your vehicle’s window, after asking for your license and possibly other documents, a question from the officer will usually start off the encounter. “Sir, do you know how fast you were going?” or “Is there some reason that you were not able to stay in your lane back there?” or “Miss, I clocked you with laser going 78 in a 45 miles per hour zone. Are you on your way to an emergency or something?”

The content of your answer is relatively unimportant to the officer. The manner of speech is what is being observed. Unfortunately, even officers with extensive training can be misled by what they hear. A large number of officers believe they can predict how much alcohol you have in your system through listening to your speech patterns.

Engaging in lengthy excuses does nothing to improve the chances that you will be allowed to leave the scene, if the smell of alcohol or of contraband drugs is present. If the officer smells or suspects that he or she smells anything that might impair you, the next step of the officer’s investigation is to ask you to step out of the vehicle.

Each aspect of this “exiting of the vehicle” maneuver will be noted by the officer in detail later, from how quickly you exit, whether you use the side of the car or door frame or arm rest of the car to assist your exit, whether you fumble with items in your hands, such as keys or wallet, whether you drop anything, how you balance yourself or possibly sway, once you get out—anything and everything. If you are crying, belligerent, pleading to be let go or exhibiting similar behavior that might possibly be associated with an impaired individual, the officer will note it in the report that he or she fills out later.

Should I obey and step out of my car if asked?

Although almost no one does this, you may be better off not immediately stepping out of the vehicle. If you politely ask the officer, “May I ask why I need to get out of the car?” he or she will usually advise you that impairment is suspected. If so, tell the officer that you would like to call an attorney to determine his or her advice about what to do. The officer will not usually allow this to be done and will insist that you need to step out. If you are “assisted” in exiting your vehicle (by the officer opening your door or touching your arm), then custody has likely occurred. DO NOT PHYSICALLY RESIST THE OFFICER, but verbally try to decline getting out of your vehicle.