As a DUI attorney, people often ask me, “What would you do if, after having been drinking, you were stopped by a police officer?”
I’ve often thought about what I would do I was stopped after drinking. Over the next 3 installments, I'll described what I'd do, hypothetically, if this happened to me in California.*
IN THIS INSTALLMENT: What to do right after being stopped for DUI.
People ask me, “What would you do if, after having been drinking, you were stopped by a police officer?
My short answers is: Don’t lie. And don’t tell the truth!
To that I get an inquisitive look and the question: How is that possible?
Invoke Your Right to Remain Silent
When faced with an officer on the side of the road you must first accept the fact that the officer will know that you are drinking. Officers are trained to note “objective symptoms of intoxication”, including odor of alcohol, bloodshot/watery eyes, slurred speech and unsteady gait. (Ignore the fact that these observations in reality are “subjective”, as their observance lies in the eye of the beholder.) When you add in the fact that many of these traffic stops occur around 2:00 a.m. on a weekend, you can imagine an officer will be hypersensitive to the point where he or she will even see symptoms of intoxication even where there is none!
Officers will then start with a serious of innocuous questions, such as, “Where are you going tonight?” and “Where are you coming from?” but inevitably within 4 questions or less, you will be asked, “Have you been drinking tonight?” or “How much have you been drinking tonight?”
It is at this point where drivers—who have likely already made a few mistakes–will make their situation worse, by inevitably answering, “Two drinks,” or “A couple.”
When I ask clients why they said this (especially when they usually drank even more), they ask me, “Well, you said ‘Don’t lie.’ What should I have said?” The answer? Nothing!
Remember folks, you have the right to remain silent! But, people tell me, “I’m not going to say that to an officer. He’ll think I’m guilty!” To this I say: He already does!
Keeping in mind the officer’s aforementioned observations, you only make it worse by admitting to drinking. No officer in this country is going to beat it out of you! Why would you tell him? By doing so, the officer has the best admissible evidence that you drank and perhaps how much. Worse yet, by lying about how much you actually drank, you have now destroyed your credibility, made it more difficult to establish a “rising blood alcohol” defense, and possibly forced yourself to take the stand at trial in the future--something that you'd rather not do.
There are several key points here. First is my emphasis of “admissible” evidence. See, I don’t care that the police officer thinks you are guilty. I already assume that. I also know that, with few exceptions, you WILL be arrested if you are stopped after having anything to drink. You MUST accept this fact the second you see the flashing lights behind you after drinking. Sorry, but your fun night is over.
At that point your goal should be to limit evidence that could be admitted in court against you. For that reason, I only care about what the prosecutor can prove. For that, she needs admissible evidence. There is no better admissible evidence in a DUI case than a defendant’s admissions. However, the prosecutor also knows that the fact you said “I invoke my right to remain silent” to the officer is NOT admissible to the jury. A judge cannot allow the jury to hear this (because case law says it is so prejudicial), and the prosecutor knows this. (The prosecutor must tell the officer before trial that he cannot testify that you invoked your right to remain silent.) This is why you must immediately invoke your right to remain silent from the first question! This is THE hardest thing to do because you must do so immediately, and people are so afraid this will upset the police officer, and make them look guilty.
Yes, invoking your right to remain silent probably will upset most officers, but if you can keep your nerve, and invoke your right firmly and politely, over and over, even in the face of repeated demands to answer questions and threats of arrest, I promise you it will be the best decision you can make.
Officer: “Good evening. Where you coming from tonight?”
You: “I invoke my right to remain silent.”
Officer: “What?! I’m simply trying to talk to you! I think you’ve drinking tonight! You can make this easy and talk to me, or I’ll arrest you for DUI and impound your car!” You: “I understand. I invoke my right to remain silent.”
Officers are required by law to immediately cease question with the exception of getting information regarding identity, proof of insurance and registration. Go ahead and answer these questions and provide such documents. But you don’t have to—and must not—give any other types of information about your night. (I don't even like small talk with officers. It makes them sound sympathetic to juries when the videos are played.) Don’t even answer the first question which is usually, “Where are you coming from?” because this will be used in court to determine: 1) You were (likely) at a bar or restaurant, 2) How long you’ve been driving to get to where you were stopped, and therefore 3) How long it’s been since your last drink, and 4) What your blood alcohol level has been since you started driving.
All of the other subsequent questions are also designed for these same purposes. You will also be asked such questions as: Where you were going? Have you been drinking? How much did you have to drink? What type of drinks? Have you eaten tonight? What did you eat? When did you last eat? When did you last sleep? How many hours? Do you have any medical conditions? Are you taking any medications? And many more seemingly innocent questions. Don’t answer them! Remember: Don’t lie. And don’t tell the truth. Invoke your right to remain silent. Over and over to EVERY question!
Though they are not supposed to, this officer (and the others that inevitably respond) will continue to ask you several times how much you had to drink (and the other questions) even after you invoke your right to remain silent. Be firm and resilient! Say it over and over to every officer you see that night. Say it specifically. Don’t equivocate. Statements like, “Maybe I should remain silent.” and “I probably shouldn’t say anything.” and other watered-down statements are NOT invocations of your right to remain silent, and such statements may be used against you! Repeat word-for-word after me: “I invoke my right to remain silent.”
People often want to cooperate and take the easy way out my admitting to drinking, but hope that by understating how much they had to drink (“just a couple”), and exaggerating how long it’s been since their last drink (“I quit drinking hours ago”), that it will be OK and they’ll be let go. Wrong!
Firstly, no one gets let go for DUI for being a “nice guy.” There is too much incentive for officers to arrest in DUI cases. They have nothing to lose if they are wrong and their departments get financial incentives for DUI arrest statistics. Secondly, aside from the fact that lying to an officer may technically be a crime, it damages your credibility when you inevitably give a chemical test that will show it was impossible you only had “two drinks.”
This matters because the most common DUI defense centers on the “rising blood alcohol” defense, which basically means that, while you might have given a chemical test showing you were over the limit an hour or so after you were stopped, if your blood alcohol level is still going upwards (as it goes from your stomach to your blood stream), you may have actually been under the limit when driving—which is the only time that matters by law.
Most people understate their number of drinks, and overstate how long it has been since they quit drinking, which actually ruins a legitimate rising blood alcohol defense! In such a case, the truth might actually help, but by ruining your credibility and your defensefrom the start, the damage is already done, and to fix it may be impossible and require you to testify (which in most cases is not a good idea.) Also, don’t guess as to what you should say. Remember the best advice: Don’t lie. And don’t tell the truth. How do you do this? Say nothing and invoke your right to remain silent!
You must protect yourself, and for the greatest effect, you must do so immediately, from the start. When you see the flashing lights and you’ve been drinking, admit to yourself that you are going to be arrested. Sorry, but your night is over. The only question is, “How much rope are you going to give the officer to hang you with by talking?”
(NEXT TIME: What to do when asked to perform the Field Sobriety Tests.)