The Fifth Amendment Still Exists Even When You Get Pulled Over for DUI
One issue I consistently see in my DUI practice is clients not knowing their rights when they are pulled over. Most people who are arrested for drunken driving have never committed a crime or been arrested and are otherwise law-abiding citizens with little or no contact with the police or the criminal justice system.
As such, when an officer pulls them over and asks them "Have you been drinking?" they dutifully answer the question. Often, they say they had "a couple of beers" or a "couple of drinks". I have seen similar statements in practically every police report I have read as part of a DUI arrest. Sometimes the statement is true and sometimes the driver is trying to downplay his alcohol consumption.
In every case, this statement was used against the driver to prove they consumed alcohol before they operated a motor vehicle. It was also used to justify the officer's decision to arrest the driver and give them a formal breathalyzer test.
Even though no officer will ever say it, you do not have to answer their question "Have you been drinking?" The Fifth Amendment still exists.
I recommend that a driver politely say "Respectfully, officer, on the advice of counsel I refuse to answer that question." Some think that saying this will increase the chances they will be arrested but I disagree.
Admitting to drinking, even a "couple of beers" absolutely will increase your chances of being arrested and make the job of convicting you of DUI much easier.
So please remember that an officer cannot force you to testify against yourself even if you are driving a car.
Now, this is different from whether the take the breathalyzer test, which I will discuss below. The MVA will take administrative action against you if you refuse to take this test and the officer must advise you of this before you make any decision. At this point, you have the right to consult an attorney and you should attempt to do so.
To Blow or Not To Blow
One of the most common questions I get as a DUI lawyer is whether someone should take the breathalyzer test when arrested for drunken driving. In this post, I will discuss the pros and cons of this decision and provide what general advice I can. Changes in the law, however, make this decision much more complicated and really require that you contact an attorney immediately when you are arrested and before you actually choose whether to blow or not to blow.
You have the right to counsel at this critical juncture and you should take advantage of it. You can call our office at 410-541-6DUI (384) 24 hours a day and speak directly with me. Keep this information handy in case you need it.
If you consent to the breathalyzer test and have a blood alcohol reading between .08 and .15 your license will be suspended for 45 days (on a first offense). This suspension may be modified to allow you to drive for limited purposes such as driving to work, school or alcohol treatment. If you refuse the test or if you take the test and have a reading of .15 or more your license will be suspended for 120 days and may only be modified if you agree to ignition interlock in your car for at least one year (again for a first offense).
Now, before the law was changed to treat those whose blood alcohol level of .15 or higher the same as those who refused the test, I advised first time offenders to take the test as the administrative sanction for refusal was likely to be worse than the likely sentence in a criminal case. Unfortunately, if you take the test and blow .15 or over you lose both on the criminal side and the administrative side.
The advantage of refusing the test is that the State's Attorney will have one less piece of evidence to convict you in court. As we discussed a prior post, the purpose of an officer's asking you if you have been drinking, giving you field side sobriety tests, etc. is to build the case against you. The Fifth Amendment gives you the right to refuse to incriminate yourself whether it is to refuse to answer the question if you have been drinking and to refuse any tests that will be used against you in a court of law. The breathalyzer test result is the most critical piece of evidence used in court and without it the job of convicting you on the most serious alcohol related charges is much more difficult.
The bottom line is this. For most first time offenders, the administrative sanction of refusing to take the breathalyzer is still worse than the likely criminal sanction unless of course your BAC is .15 or higher and then it is the worst of both worlds. There is no way to know what your blood alcohol level is short of taking some test and if you have been drinking your judgment in figuring how drunk you are is impaired.
That is why it is so important to contact an attorney for sober, thoughtful analysis and advice. If the police refuse to allow you to contact an attorney, that may be used to prevent the MVA from taking action against you.
The Most Important Thing to Do After You Have Been Arrested for Drunk Driving
We have covered some issues involved during a drunken driving arrest. But now let’s discuss what you need to do after you have been arrested.
So it is the next day. You may need to get your car out of impound and you have a legal mess facing you. Of course, the very first thing you should do is contact an attorney and begin the process of dealing with the charges you face.
You can contact me at anytime by calling 410-541-6DUI (384) or emailing email@example.com
Maryland, drunken driving charges have two
separate tracks, a criminal track, where you can face jail time or probation,
and an administrative track, where your privilege to drive is at risk.
If you are a
Maryland driver you should receive, as part
of the many documents given to you by law enforcement, a temporary license and
a request for hearing form. It is critical that you complete this request form
and return it to the Maryland Office of Administrative Hearings along with a
check for $125 made payable to the "Maryland State Treasurer".
Maryland law, your privilege to drive will
be automatically suspended on the 46th day after your arrest unless you request
a hearing within 10 days of your arrest.
So completing this request is the most important thing you need to do
after being arrested on drunken driving charges. With a timely request, you can
continue to drive normally until the date of your hearing.
You may request a hearing up to 30 days after your arrest. However, if your request is made more than 10 days after your arrest your license will still be automatically suspended on the 46th day after your arrest.
You do want to have a hearing. At a hearing, you can challenge the evidence against you and possibly convince the hearing judge to take "no action" against your license. Even if you fail to do this, you can have the suspension modified in order to allow you to drive, under certain conditions. If you do nothing, your license will be suspended automatically.
Another point on the request. Send your request, with your check in some form that can be tracked and that will allow you to confirm it has been received (such as certified mail, FedEx, UPS). While your request may be sent by regular mail if it is not received, the Office of Administrative Hearings will take the position that you never sent it (I have had clients where this has happened and you do not want to have it happen to you.)
So, the first thing you do after getting arrest and contacting an attorney is to properly request an administrative hearing.
Another Reason Not to Get a DUI
I know you really do not need another reason not to get a DUI. Potential jail time, loss of driving privileges, mandatory alcohol treatment all seem good reasons to avoid getting arrested for drinking and driving.
There is another reason why you do not want to be convicted an alcohol related driving offense. You can never expunge it from your record.
Maryland, the statute that provides for
expungement of criminal records (Md. Ann. Code, Crim. Proc. 10-105) expressly excludes
a drunken driving charge ("a violation of 21-902 of the Transportation
Article") from being expunged. This means that even a probation before
judgment (PBJ) for drunk driving can never be removed from your permanent
The reason for this is that a defendant may not get two PBJ's within a ten year period and the State needs to keep records in order to enforce this statute. However, even if ten or more years has passed you still cannot obtain an expungement.
Bottom line, a drunken driving related charge is always going to stay with you. Another reason not to get a DUI.
If you have questions about expungement or other matters, please give us a call at 410-541-6DUI (384)