Driver’s Rights During a California DUI Stop
- Do I have a right to an attorney in deciding whether or not to take the blood test or the breath test?
- Do I have a right to an attorney during the administration of the breath or blood test?
- Do I have the right to have an attorney present before any questioning?
- Do I have the right to remain silent?
When a person is stopped on suspicion for driving under the influence, the officers have certain rights to pursue in order for them to build a case. The driver is also protected in certain instances under the United States Constitution. However, case law through the centuries has carved out several exceptions for DUI stops in order for officers to conduct an investigation and collect evidence against the driver. Being aware of what rights a person has, and what rights a person does not have will help protect the driver in giving the prosecution a weak case.
1. Do I have a right to an attorney in deciding whether or not to take the blood test or the breath test?Unfortunately, a person who is stopped for a DUI does not have the right to consult an attorney before they decide to take a blood or breath test.
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2. Do I have a right to an attorney during the administration of the breath or blood test?This right is also not guaranteed during a DUI stop. The officer is not required to allow the driver’s attorney to be present during the field sobriety test. However, if there are issues that arise later, the attorney or driver has the right to be retested. The driver or attorney also has the right to request maintenance records for the machine that produced the test results in order to expose any errors or malfunctions that may be present.
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3. Do I have the right to have an attorney present before any questioning?One of the exceptions carved out by case law is that a person stopped on suspicion of a DUI does not have to be read their Miranda rights. This means that officers are not required to wait for an attorney to be present, if the drivers asks for one, before they conduct any questioning. The questions that are asked are generally not interrogative, nor are they in a custodial setting.
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4. Do I have the right to remain silent?When a person is stopped and questioning regarding a possible DUI, they have the Constitutional right to remain silent. They are required to answer only basic questions regarding identification, insurance and current address. However, they do not have to answer when they are asked if they had been drinking, how much they had been drinking, where they had been, and how long they had been driving, etc. They may respond politely that they do not wish to answer the question.
Prosecution primarily builds their case based on the officer’s report and account of the night. The officer will include all observations they directly made, as well as any information they gathered from questioning the driver. If there are less comments and information gathered by the driver, the government’s case will be weaker. Thus, it is advised to remain polite and cooperative, but answer as little as possible.
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