One issue I consistently see in my DUI practice is clients who just do not know their rights when they are pulled over. Most people who are arrested for drunk 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 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, and will argue they are not required to, 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, however, 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 in more detail in another post. 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. You can call our office anytime 410-541-6DUI (6384).
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