Can Silence Or Refusal In A DUI Case Be Used Against You?

When the police pull you over for drunk driving, it is crucial to ensure that you understand your legal rights. You must ensure that you safeguard yourself against self-incrimination. When talking to the officers, you could provide information that can be used against you in court. On the other hand, you should avoid actions that can result in additional charges. You do not have to submit to a preliminary alcohol test, abbreviated as a PAS test. However, you could face criminal charges if you refuse to submit to a DUI chemical test.

When The Police Pull You Over

The officer must have probable cause to pull you over for DUI. For example, the law enforcement officer could have noticed you leaving a bar, driving aggressively, or failing to stop. After pulling you over, the officer will check for signs of intoxication. Some of the common signs of intoxication include:

  • Inability to engage in a meaningful conversation or maintain eye contact
  • The officer can notice the smell of alcohol in your breath
  • Slurred speech
  • Comments about how you are coming from a bar
  • Bloodshot eyes

If you have any of the signs outlined above, the officer can use them as a ground to subject you to a breath test or a field sobriety test. The arresting officer only needs to suspect that you are under the influence to administer DUI testing. 

Whether You Can Remain Silent

After a DUI stop, the officer will ask you questions and look for signs of impairment and evidence of intoxication. You do not have to answer the officer's questions. You have a right to remain silent to shield yourself. However, refusing to speak at all can be considered uncooperative.

Instead of refusing to speak to the officer, you can speak politely and avoid saying anything that can incriminate you. Do not share details like where you are coming from or if you have had a drink. Providing this information to law enforcement officers will give them more evidence against you.

How You Can Assert Your Right To Remain Silent

The law surrounding a defendant's right to remain silent is complex and unclear. It can be challenging to determine what you can or cannot do.

What should you say or not say following a DUI stop?

A common mistake most drivers make when police stop them on suspicion of DUI is saying too much. It is crucial to note that when the police stop you, they will look for any evidence of wrongdoing.

The police will seek to know where you are coming from and where you are going. Another common question that officers pose is whether you have been drinking. How you answer these questions will significantly impact how your case proceeds.

It is human nature to want to cooperate with the officers and not appear rude. However, the police officers will be taking notes of everything you say and how you say it. That is why ensuring that you say as little as possible is crucial. Here are a few tips:

  • You should try to remain silent. Remember that the police can and will use everything you say against you. If you misuse words or your speech is slurred, the police will use these factors against you.
  • When you assert your right to remain silent, the police cannot force you to answer their questions.
  • Even if you have consumed alcohol or other drugs, you should not admit this to the police. If you acknowledge that you have consumed alcohol and drugs, you will be incriminating yourself.
  • You can deny the police consent to search you or your vehicle. The law requires the police to have probable cause and, in most cases, a warrant to search your vehicle.
  • You can refuse to submit to the field sobriety tests, abbreviated as FSTs. FSTs are unreliable because even people who are not intoxicated have a hard time completing them.

Of course, you cannot ignore the police officers entirely. It is okay to talk to the police, but remember to be polite when asserting your legal rights. If the police ask if you have been drinking, respond by saying you prefer not to comment on the issue and are exercising your right to remain silent. When you do this, you have acknowledged the officer's request but do not wish to discuss the issue.

Limitations To Your Right To Remain Silent

At a DUI stop, the police probably have probable cause to arrest you for DUI. Things could go downhill when the police request that you leave the vehicle. Do not panic. Cooperate, but remain firm. Ensure you inform the officer that you are exercising your right to remain silent and do not consent or agree to have your vehicle searched. Inform the police that you are not willing to perform the FSTs.

The law requires informing the police that you are exercising your right to remain silent. You should also realize that you do not have a right to an attorney until the police arrest you.

Some people assume that it is okay to speak if the police have not read them their Miranda rights. Even if the officers have not informed you of your right to remain silent, you should say as little as possible. All the statements you make before reading your Miranda rights can still be used against you.

What You Should And Should Not Do When The Police Stop You For DUI

Here is what you should do when the police pull you over:

  • Signal and pull over by the side of the road
  • Put your vehicle gear in the Park
  • Roll down the driver's window
  • Ensure that your hands are where the police can see them — ideally, they should be on the steering wheel.
  • Provide details like your license, vehicle registration, and proof of auto insurance.
  • Be respectful and polite when addressing the officer. Use titles like ma'am or Being polite will earn you points.

Get out of your vehicle when the police request that you do so. If you did not drink or took very little alcohol, you could take the roadside breath test. However, you must exercise extreme caution when taking the test. There are some instances when the police do not arrest someone because of the negative results of a roadside breath test. However, in other cases, the police make a DUI arrest based solely on the results of a portable breath test. Remember that you could still face DUI charges even if your blood alcohol concentration (BAC) is below the legal limit. The police only need to believe that your driving is impaired by alcohol or drugs.

What To Avoid After A DUI Stop

Try to avoid engaging the police in a conversation as much as possible. The police could use your answers and any inconsistencies against you. The police will document any factors that serve as evidence of intoxication, including alcohol odor in your breath or a slurred speed. Even if it is difficult to remain silent, work through the process. Refrain from being tempted to talk to the officer on your ride to the police station.

Do not be rude or argue with the law enforcement officers. Aggressive behavior or a lack of cooperation can lead to additional charges. Even if you argue, it is unlikely that you will convince the officer that you are not under the influence. Hardly will you persuade the officer to release you if the officer believes that you are intoxicated.

When you arrive at the police station, you should request to speak to an attorney. Your attorney will take your case from there and handle it in your best interests. The police, unlike your attorney, are not interested in your best interests.

Who Must Submit To A PAS Test

Usually, a regular driver can choose not to undergo a PAS test without implications. However, there are some exemptions. California law requires drivers under 21 years to submit to a PAS test. You must also submit to the test if you are on probation for a previous DUI conviction, even if you are over 21 years old. If you are in either of these categories, you will face additional charges if you refuse to submit to a PAS test.

Whether You Can Choose The DUI Chemical Test To Take

When alcohol-related impairment is suspected, you should be given the option of a DUI breath test or a  DUI blood test. A DUI urine test is only administered if:

  • You are unable to perform a blood test due to suspected drug usage, a lack of available testing, or a medical problem. In these and other situations, you could be unable to select which DUI test to take.
  • If an officer suspects you are under the influence of drugs, abbreviated as DUID, you could be given the option of taking a DUI blood or breath test. Even if you go for a breath test, you could be obliged to take a DUI blood test if the police officer believes it could reveal the presence of drugs. The arresting officer will determine whether a DUI blood test is necessary. Alternatively, the police can bring in a drug identification expert (DRE).

What happens if your preferred DUI test is not available?

In rare cases, a DUI blood or breath test might not be available. For example, assume you require medical attention and are transported to a hospital with no DUI breath testing equipment. In this situation, you have to be given the option of taking any of the available tests at the facility.

If The Officer Does Not Provide You With The Preferred Test

Failure to follow the officer's directions in any way will result in a chemical test refusal.

Remember that under California's implied consent statute, you agreed to DUI chemical testing. If the officer does not provide you with your preferred test, you can ask for an alternative test. The results could be contested afterward if applicable processes are not carefully followed.

However, once you are ordered to take a particular DUI chemical test, there are no legal reasons to resist it.

The Consequences Of Failing To Submit To A Breathalyzer Test

You will not face charges for refusing to submit to a PAS test, but you could face the following consequences for a breathalyzer test refusal:

Automatic Suspension Of Your Driver’s License

Refusing to submit to a breathalyzer test could lead to an automatic administrative suspension of your driver's license. The California DMV will suspend your license regardless of whether you are innocent or guilty of DUI. The license suspension period is often longer than for a first-time DUI offense. It is vital to emphasize that this suspension is distinct from any suspension issued by the court. 

The typical penalty for a first-time DUI with a test refusal is one year of license suspension. You will have difficulty commuting to work, school, and other places.

Enhanced Penalties

If the judge later convicts you of DUI and you reject a breathalyzer test, the refusal could be used against you. The prosecutor could claim that your refusal shows a sense of guilt, which could lead to harsher punishments.

Additional penalties can include extended license suspension, participation in a mandatory alcohol education program, or even jail time. The District Attorney's common strategy is to request a minimum of 48 hours in jail for a DUI test refusal, regardless of any other aggravating factors that could increase the punishment.

Impact On Your Defense Strategy

Refusing to undergo a breath test could complicate your legal defense approach. While the prosecution will not have direct evidence of your BAC, they can build their case against you using other evidence, such as witness testimony, field sobriety tests, or officer observations. Your test refusal could be used to undermine your credibility or suggest guilt to the jury. It will look like you were seeking to conceal the evidence of impairment since you knew you were liable for drunk driving.

Chemical Test Refusal After a DUI Arrest

In California, when you obtain your license, you consent to submit to chemical DUI testing of your breath or blood if the police suspect that you are driving under the influence. The agreement is usually referred to as "implied consent."

Refusing to take a breath or blood alcohol test after being arrested for DUI could result in more severe consequences than a DUI conviction. Refusing to accept the PAS does not shield you against an arrest if the officer suspects you were driving while intoxicated.

If you decline a breath, blood, or urine test following an arrest, you will face additional penalties if you are found guilty of DUI. The punishments differ depending on whether it is a first or subsequent DUI test refusal offense.

For a first-time DUI offense, refusing to undergo a DUI chemical test can attract the following additional consequences:

  • An additional 48 hours in jail
  • An additional six months of DUI school
  • A suspension of your driver’s license for one year

For a second DUI offense, you will face an additional jail time of 96 hours if you refuse to undergo DUI testing. You could also be subject to a license suspension for two years. 

If you are a third-time DUI offender and you refuse to undergo a DUI test, you will face an additional jail term of ten days. You could also be subject to a three-year suspension of your driver's license.

For a defendant facing charges for a fourth DUI offense or beyond, refusing to undergo a DUI test can result in an additional 18-day jail time and a three-year driver's license suspension.

Your Options AfterYou Refuse A Breathalyzer Test

If you decline a breathalyzer test, you should seek legal assistance immediately. An expert DUI attorney can assist you in navigating the intricacies of your case and exploring potential defense tactics. Here are some possible legal defenses that can be available:

  • Challenging the traffic stop — your attorney can look into the facts of the traffic stop to see whether the police made constitutional violations or if procedural flaws could result in evidence suppression.
  • Contesting the refusal — Your attorney can determine whether the arresting officer correctly informed you about the ramifications of refusing the breathalyzer test. If the police officer failed to deliver proper information or violated your constitutional rights during the arrest, this could help your case.
  • Assessing test accuracy — To question the accuracy of the test findings, your attorney can evaluate the dependability of the breathalyzer device utilized. This can involve checking the maintenance records, the device's calibration history, and potential operator errors.

Find An Experienced DUI Attorney Near Me

Refusing to undergo DUI testing carries its own set of repercussions. These consequences include immediate license suspension, potential penalty increases, and the influence on your legal defense. If you find yourself in this circumstance, consult a competent DUI attorney who can walk you through the legal procedure and create a strong defense strategy customized to your case. Remember, acting quickly to safeguard your rights and achieve the best possible result in your DUI case is critical. For reliable legal representation in Bakersfield, contact Koenig Law Office. Call us at 661-793-7222 to speak to one of our attorneys.