Know Your Rights If You Are Pulled Over for a DUI

It’s important to know and protect your rights when you are pulled over for a DUI. During a DUI traffic stop, be sure you take the time to understand what to do so you retain your Fourth Amendment Rights to remain free from unreasonable search and seizure, as well as your Fifth Amendment right to remain silent.

In this post, we’ll explain, step-by-step, exactly what happens when you are pulled over for a DUI.

What happens when you get stopped for 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.”

What pre-field sobriety test questions do police ask when they pull you over for a DUI?

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?”

Do you have to get out of your car when you are pulled over for DUI?

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

Do you have to answer pre-field sobriety test questions when you are pulled over for drunk driving?


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

Do you have to perform standardized field sobriety tests when you are stopped for a DUI?


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.

Do you have to submit to the preliminary alcohol screening (PAS) test when pulled over for a DUI?


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.

How long can they hold you for a DUI in California?

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.

Can you drive the day after you get arrested for a DUI in California?


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.

What happens if you are riding with someone who gets arrested for a DUI?

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.

What happens if you are pulled over for a DUI and not charged?

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.

Can you get a DUI without being pulled over?

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.

What happens if you get pulled over with a suspended license from a DUI?

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.

What to Do If You Get Pulled Over for a DUI

The steps you take during the traffic stop will determine how strong your case is later. The first step is to be calm and polite but to say as little as possible. 

You are always permitted to say that you invoke your Fifth Amendment rights and decline to answer. Most people focus on trying to avoid an arrest, but it’s often more useful, in the long term, to focus on avoiding a conviction.

Read about how a blood alcohol level of .10 after driving may not be a DUI.

It’s often useful to refuse the PAS test because you have a right to refuse, and doing so deprives officers of evidence. Once you are arrested you will be unable to refuse a blood or evidential breath test without facing administrative penalties, including a license suspension of at least one year without restriction. 

Once arrested, continue invoking your Fifth Amendment rights and continue asking for your lawyer. The less you talk to the police, the better.

Consult a Placer County DUI Attorney Today

There are many steps to a DUI investigation. You retain rights at each step of the process. If you are arrested or charged with a DUI, the Cohen Defense Group will work hard to defend your rights.

Contact us to schedule a free consultation today.

Find out how much a DUI lawyer costs in California.

About Zachary Merliss

Zachary Merliss HeadshotZach Merliss focuses his practice on DUI law in Placer County. He teaches the “legal aspects” lecture at a First Offense DUI School in Auburn, and successfully completed the 3-day Standardized Field Sobriety Test Academy, which is the same course police must pass before conducting a DUI investigation. He has litigated dozens of DMV hearings, DUI trials, and motions to suppress evidence. During his time at the Cohen Defense Group, he has worked hard for clients to obtain reduced sentences and dismissals.

Posted in DUI