Know Your Rights If You Are Pulled Over for a DUI

When a suspect is pulled over for a DUI, the police usually approach the driver’s side window and observe the driver. They will look at whether the suspect has “objective signs and symptoms of alcohol intoxication.”

The three most common signs are:

• An odor of alcohol
• Red eyes
• Slurred speech

If the police determine the driver has these signs and symptoms, they will usually ask him or her to step out of the car to answer “pre-field-sobriety-test questions.”

After asking you to step out of the car, the police will usually ask the following pre-field sobriety test questions:

• “Were you driving?”
• “Were you drinking?”
• “When did you drink?”
• “How much did you drink?”
• “Do you have any physical or medical conditions?”

Yes. In most incidents, you will.

In Pennsylvania v. Mimms, the Supreme Court ruled that police have the authority to order people out of the car, even without their consent, as long as they have a reasonable belief that a DUI or traffic violation has been committed.

Usually, any of the following facts are enough to show reasonable belief:

• Erratic driving
• Objective signs and symptoms of alcohol use
• Admissions of drinking

No.

Every person retains the right to remain silent under the Fifth Amendment and does not have to answer any questions, even if stopped for a DUI.

However, in Brendlin v. California, the Supreme Court ruled that police do not have to read a Miranda warning before asking questions during a DUI stop.

In Salinas v. New York, the court ruled that suspects must tell the police they wish to remain silent, or else silence may be used against them in court.

After the questioning period, police often ask suspects to perform standardized field sobriety tests, including the horizontal gaze nystagmus test, one leg stand, and walk-and-turn. To learn more about these tests, please check out our blog post on field sobriety tests. 

No.

A suspect may refuse to participate in field sobriety tests if he or she is pulled over for DUI.

However, thanks to People v. Jackson, this refusal can be used in court to show that you had a “consciousness of guilt.” This means the prosecution can argue to a jury that your refusal to participate happened because you knew you were guilty.

Note a failed field sobriety test may not always mean a DUI.

No.

After a field sobriety test, the police will usually ask the suspect to submit to a breathalyzer on-scene. In California, this breathalyzer is known as the “preliminary alcohol screening test,” or PAS. 

The PAS tests do not have to comply with requirements under the California Code of Regulations. For example, they do not have to be tested or calibrated every 10 days or 150 blows.

According to People v. Jackson, a suspect has the absolute right to refuse the PAS test, which is what we recommend.

The refusal cannot be used against the suspect in court. A specific law, Vehicle Code 23612(i), says that police must inform suspects of their right to refuse.

It depends. After the booking and testing, bail could be set according to the county schedule, or you could be released on your own recognizance (OR), which means you promise to return for your court dates. 

If you remain in custody until arraignment, which generally must occur within 48 hours of arrest, a judge will determine if you are a flight risk, or if you’re a danger to yourself or others. Generally, it would be rare to see someone held in custody after arraignment for a first-time DUI unless they have a criminal record unrelated to DUIs. If you’ve never been in trouble before an OR release is likely.

Yes.

If you are arrested for a DUI, California automatically administratively suspends your driver’s license starting 30 days after the arrest unless you request a DMV hearing to contest the suspension.  You must request a DMV hearing within 10 days of arrest.  Your lawyer can help with this.  If you timely request the DMV hearing, you retain full driving privileges until that hearing is held or canceled.

The passenger is technically a witness to a crime. They may also be the source of exonerating evidence: perhaps it’s the passenger who smelled like alcohol, and not the driver. 

Either way, it depends. If the passenger is sober and capable the police may allow him or her to drive the vehicle home. If not, they may tow the vehicle and leave the passenger to find his or her way home another way. If the condition of the vehicle or the passenger implicates the passenger in other crimes, the police may arrest the passenger too, on a set of other charges. 

Either way, the passenger is not charged with DUI simply because the driver is driving while intoxicated.

If officers arrest you for a DUI they intend for the prosecution to charge you. They already feel they have sufficient evidence to do so. They may wait until blood test results return to formally request charging you, but it would be very rare for them to release you at this point.

If they don’t arrest you, then you’re free to go.

Sometimes officers charge people with DUI without pulling someone over. For example, if they find you sleeping off apparent intoxication while parked, they will generally assume you were driving while intoxicated. Or they come over to your house after getting a report that you were driving drunk. Or they arrested you at the scene of the accident, assuming you were driving even if you tell them you were a passenger.

In these cases, we can use the “not driving” defense to undermine the idea that you committed DUI.

The police can make an arrest based on assumptions that you were driving drunk, but we can undermine those assumptions in court.

You will be arrested or cited. Driving on a suspended license is a criminal offense. If you were driving on a suspended license after a DUI arrest or conviction, you will face 10 days to six months of jail time, and a fine greater than $500 plus penalties and assessments. You may have to take additional steps to eventually get your license back.