The right to remain silent is a cornerstone of the criminal justice system.
Nonetheless, many people are confused about what, exactly, the right to remain silent means, and the application of the right to remain silent during a DUI stop.
During the chaos of being stopped, arrested, and charged with a crime, it’s easy to forget that you have a constitutionally protected right to remain silent. Many people end up trying to talk their way out of a DUI when this is actually one of the worst things you can do.
Instead, by remaining calm and politely yet firmly telling the police officer that you are asserting your right to remain silent, you can significantly improve your chances of avoiding a conviction for a Washington DUI.
The law surrounding your constitutional right to remain silent is complex and nuanced. It can be difficult to know what you can and cannot do, and what you should or should not say if you are stopped and suspected of DUI.
A common mistake people make when they are stopped under suspicion of a DUI is to say too much.
It is important to understand that, from the moment police stop you - even for something as minor as having a tail-light out - they are assessing whether you may have committed another crime. Police will ask where you are going, where you are coming from, what you were doing, and whether you were drinking. Your answers to these questions can have a significant impact on how your case will proceed.
Of course, it’s human nature to want to be cooperative. But remember - the police officer will be taking notes on everything - including not just what you say, but how you say it. That’s why it’s a good practice to say as little as possible. Remember:
Of course, practically speaking, it is often better to say something to the police officer. But remember to be polite and cooperative while asserting your rights. For example, if the police ask if you have consumed alcohol or drugs, it’s best to simply state that you would prefer not to discuss the matter and that you are asserting your right to remain silent. This shows that you have acknowledged the officer’s request, but do not wish to discuss the matter.
If you have been pulled over and the police ask you whether you have been drinking or are on drugs, it’s likely that they believe they have probable cause to arrest you and charge you with DUI.
If the police ask you to step out of your vehicle, it’s likely that things will go downhill - and fast. Remain firm, but cooperative. Tell the officer that you are invoking your right to remain silent, that you do not consent to a search of your vehicle, and that you refuse to perform Field Sobriety Tests.
It is important that you affirmatively tell police that you are invoking your right to remain silent.
A 2013 U.S. Supreme Court Case, Salinas v. Texas, made clear that a suspect must specifically invoke the right to remain silent.
It’s also important to realize that you do not have the right to an attorney until you are formally taken into custody.
Even before the officers have advised you of your right to remain silent, it is wise to say as little as possible. In fact, the statements made before you have been read your Miranda rights are just as important, if not more important, than statements made after you have been advised of your rights. Indeed, these statements are often used to show that the officer had probable cause to arrest you and charge you with DUI, and can be used to show evidence of intoxication.
If you are pulled over by a police officer:
Do NOT try to engage the officer in conversation or answer questions. Your answers - and any inconsistencies - will be used against you in court, and the officer will document the odor of intoxicants on your breath, slurred speech, and any other factors that make you appear to be intoxicated.
Do NOT argue with the officer. Politely but firmly tell the officer that you do not wish to answer any questions. You will not win the argument. You will not convince the officer that you are not under the influence. You will not convince the officer that he was wrong and that he should let you go.
DO get out of the car if you are asked to do so. But do NOT take any Field Sobriety Tests, including a roadside Breath Test.
If you had nothing or very little to drink, it can be helpful to take the roadside Breath Test or Portable Breath Test. However, take this test with extreme caution. I have seen cases where a Portable Breath Test result is the primary factor an officer relies on not to make an arrest. I have also seen cases where the Portable Breath Test result is the sole cause for the arrest. Keep in mind, even if you are below the legal limit, you can still be charged with DUI if the arresting officer believes your ability to drive is affected to an appreciable degree due to alcohol and/or drugs.
If you are placed under arrest, say as little as possible. Every time you say something to the police officer you hurt your case.
While it’s difficult, just stay quiet and work through the process, one step at a time.
Do NOT talk to the police officer during the ride to the police station. The police officer will take notes on everything you say.
When you arrive at the police station, DO request to talk to an attorney who will tell you how to proceed with your best interests in mind.
Remember, if you are charged with a crime, the police officer is NOT interested in what is best for you.
If you have been charged with a DUI in Washington, it’s important that you hire an experienced Washington DUI defense attorney.
Washington DUI defense attorney Justin Campbell has helped hundreds of people in Anacortes, Mount Vernon, Burlington, and Sedro-Woolley, as well as Oak Harbor, Coupeville, Langley, Freeland, Clinton, and Friday Harbor who have been charged with a DUI.