Your Rights Before a DUI Arrest
Your right to an attorney is protected and guaranteed by the 6th Amendment of the United States Constitution. In practice however, especially in DUI cases, this right is not as clear cut as you think. Your right to counsel correlates with your 5th Amendment Miranda rights. And unlike what you may have seen on TV, Miranda rights are not actually read to you until you have been placed in police custody AND have been subject to custodial interrogation. This means that despite what they do on Law & Order, a DUI suspect will usually not be read Miranda rights until much later at the police station – NOT upon being handcuffed and put in a police car.
Anything you say prior to being advised of your Miranda rights can and will be used against you as a spontaneous statement. Thus it is always a good idea upon being asked any incriminating questions to remain silent. Additionally, even after your rights have been read and you have communicated your desire to remain silent or to speak with an attorney, anything you say after your request can also be used against you. In such situations, you will have waived your rights, and any statement you make will be considered an admission and will be used against you.
If you are confused about when you are allowed the opportunity to speak with an attorney in a DUI case, you are not alone. The law on this topic varies significantly varies from state to state. The right to counsel under the 6th Amendment is a federal right that serves as the minimum requirement for DUI cases. Each individual state has the discretion to expand that right, however, so depending on your state’s constitution and your local laws you may be entitled to speak with an attorney before custodial interrogation (or before you decide whether you wish to submit to a chemical test).
In fact, depending on the laws of your jurisdiction, this confusion could help you defend your case. If you have been arrested and are suspected of DUI, always ask to speak with an attorney immediately upon being requested to perform any part of the DUI investigation. While you may not be entitled to an attorney at that particular time, and your request may be taken as a “refusal” to cooperate and submit to the tests, the police officer’s failure to properly advise you of your rights could make or break your case.
In several jurisdictions you do not have right to consult with an attorney prior to deciding whether to submit to field sobriety tests, or even prior to giving a sample of your breath, urine, or blood for chemical testing. In other states, your rights attach once you are requested to give a blood, breath, or urine sample. Even in such jurisdictions, however, the right is limited – the time and manner to contact your attorney may be restricted. If the officer gave you a reasonable amount of time to get in touch with a lawyer in a reasonable manner upon your request for counsel, then usually that is enough. In the jurisdictions that do not allow you to speak with an attorney prior to submitting to the tests, the officer must inform you that no such right exists at that time. Failure to do so could help significantly in your defense.