If you are celebrating a special event or holiday weekend, and drinking makes up a part of that celebration, what do I do when I am stopped by police and is suspect D.U.I.? This is Attorney Joseph Paletta, and much of my legal experience is in the specific area of Driving Under the Influence of Alcohol (D.U.I.) defense, as is a significant part of my law practice today.
This blog addresses a stop of your vehicle by police under common, not extraordinary* circumstances. First, you should follow the instructions of the police in a respectful manner. Police are always looking for evidence of a driver who may be under the influence, and being argumentative, not cooperative, with police can be used as a piece of evidence that contributes to a finding of Probable Cause that you are driving under the influence.
However, and this is the purpose of this blog, if police ask you if you have been drinking, I advise that you not answer that specific question with a yes. We all have a constitutional right not to incriminate ourselves. When police ask you if you have been drinking, they are asking you to incriminate yourself without advising you that you have a constitutional right not to do so. They are either attempting to confirm other evidence i.e. an odor of alcohol, to order a breath or blood test, or they are attempting to create a reason to order a breath or blood test when they have little or no other evidence.
So if police ask the question have you the driver been drinking, what do you do? You can respectfully decline to answer that question, which is your right. You can also ask the police if you have the right not to answer. I understand that what I describe is difficult under the traumatic and difficult circumstance of a traffic stop, but this may permit your lawyer to present a defense on your behalf to the probable cause, or the opinion of intoxication.
* “extraordinary circumstances” means for example that this is your 5th or 4th or even 3rd DUI stop within 10 or fewer years which could result in a penalty of a year in state prison, and the same advice may not apply to all issues.