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DUI FAQs

I JUST GOT PULLED OVER…

Do I have the right to an attorney?

Unfortunately, the answer is no. The Fifth Amendment to the U.S. Constitution gives you the right to counsel, but only after being arrested and booked. When an officer pulls you over, you are being detained but not arrested. In order to pull you over, a police officer must have reasonable suspicion that you were committing a crime, or probable cause that you were committing a traffic infraction (e.g. speeding, running a stop sign). The purpose of detainment is to gather additional evidence to see if there is probable cause to make an arrest. This means that police officers are able to pull you over and talk to you without an attorney present.

NOTE: Even if the officer won’t allow an attorney, it can’t hurt to ask for one. It can show to the jury that the officer was not respecting your constitutional rights.

What do I say if the officer asks me if I’ve been drinking?

The Fifth Amendment to the U.S. Constitution also grants people the right to remain silent. You are not required to answer any questions, even if the officer asks you incriminating questions. A good reply to the officer may be, “I would like to speak to an attorney before I answer any questions.” Although you may not be allowed an attorney at this point, you still have the right to decline to answer questions.

 

What Procedures Do the Police Perform in Order to Make an Arrest?

Reasonable Suspicion

If you got pulled over, it is because the officer’s first procedure was to find reasonable suspicion that you may be intoxicated while driving. You may be asking, “What is reasonable suspicion?” It is an officer’s suspicion that a crime or traffic infraction has been committed, is being committed, or about to be committed, based on specific facts or observations. In this case, the officer’s reasonable suspicion was probably the observation of any combination of the factors found in the section “What Do Police Officers Look for When Searching for Drunk Drivers?” However, the police officer CANNOT make an arrest at this point; the police cannot make an arrest without probable cause.

Probable Cause

The officer’s second procedure involves obtaining probable cause to make an arrest. What is probable cause? Probable cause is the accumulation of specific observations and evidence that would lead the officer to believe you likely committed a crime—it is more than just a hunch, and a step above reasonable suspicion. In order to make a DUI arrest, the officer is looking for evidence or signs of impairment such as: the odor of alcohol on your breath, slurred speech, bloodshot eyes, stumbling, or the presence of an alcoholic beverage in the car. One of the most important tools law enforcement uses to determine if probable cause exists is the Field Sobriety Test.

Conduct an Arrest

If an officer obtains probable cause that you committed DUI, the officer’s third procedure is to conduct an arrest. After the arrest, an officer’s final procedure will likely be to conduct a BAC test.

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