DUI: Take The Fifth If You've Consumed A Fifth

When I was in high school we used to have seminars where police officers would visit the school to discuss underage drinking and related issues. During one such seminar, a student asked an officer whether it would be better for her when pulled over for DUI to tell the officer she had been drinking or lie to the officer. She wanted to know whether the officer would be more lenient on her for being truthful. The officer responded by telling everyone in the seminar that telling the truth to an officer was always the best thing to do.

What the officer did not tell the girl is there is actually a third option: Not To Say Anything At All. This right is based on the Fifth Amendment to the United States Constitution which grants all U.S. citizens freedom against self incriminating. A modification of an old saying might go like this: "It is better to keep your mouth shut and appear to be intoxicated than to open your mouth and remove all doubt." Of course, if you have truly not been drinking, say so.

The Fifth Amendment and Miranda
In a 1966 court case styled Miranda v. Arizona, the U.S. Supreme held that a person in police custody must be informed of the Fifth Amendment right not to make self incriminating statements before the person can be questioned by the police. This means if you are in police custody the police officer must inform you that:

1) You have the right to remain silent;
2) Anything you say can and will be used against you in a court of law;
3) You have the right to an attorney; and
4) If you cannot afford an attorney, one will be appointed for you.

If a police officer fails to give you a Miranda warning prior to questioning you for DUI any statement you make cannot be used against you in a criminal case. Further, if the police discover evidence against you (open containers, etc.) as a result of the statement the evidence will likely not be allowed against you in a criminal case. This applies not only in DUI cases, but in any case in which you may be in police custody.

My Caveat
Before I receive criticism for offering advice to assist those who drink and drive, let me state here that I do not drink and strongly discourage drinking altogether. That being said, I have seen honest individuals who have admitted to a police officer that they were DUI and received harsher penalties as a result of admitting their guilt to the officer. In admitting their guilt to an officer the lost negotiating leverage they could have held onto for when it came time to negotiate a plea agreement. At the same time, I have seen dishonest individuals lie to a police officer and retain their leverage (i.e. they can then bargain with the prosecuting attorney for a lighter sentence if they are willing to then admit guilt). I am only advocating that one exercise the Fifth Amendment privilege thereby retaining leverage while not lying to a police officer.

Penalties For DUI
The first thing you should say to a police officer who has stopped you for DUI is that you would like to consult a lawyer. Penalties for DUI vary widely from state to state. If you are a repeat offender penalties will most likely be more harsh than if you are a first time offender. Depending on the state, habitual drunk drivers may have their vehicle impounded, license revoked and much worse.

Many states have instituted minimum penalties for first time offenders including enrollment in an alcohol treatment program and license suspension. States are cracking down more harshly on first time offenders than in previous decades. First time offenders are more likely to receive a jail sentence, mandatory alcohol programs and community service well as steeper fines.

Check out this DUI blog for more information on first offenders in each of the fifty states. The blog outlines penalties for California DUI, Arizona DUI and DUI penalties in other states.

Miranda Does Not Apply to Sobriety Test
Courts have held that Miranda does not apply to chemical sobriety tests. For a discussion on chemical sobriety tests see the post titled DUI: Things You Need To Know. That being said, should you be asked any question during a sobriety test your best response might be "I choose to exercise my Fifth Amendment Rights."
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