It goes without saying that drinking and driving is a mistake that comes with a consequence. Here is some information that may help your case if you do make the mistake and get caught drinking and driving. The best advice we can give is to not drink and drive, it is very hard; if not impossible to walk away from a situation where a police officer has reasonable suspicion to think you are drinking and driving.
Know Your Rights
It is vital to know and understand your rights with regard to driving under the influence. A law enforcement officer must have reasonable suspicion or probable cause, to pull you over and/or search your vehicle. Probable cause means the officer has reasonable belief that you have or will commit a crime.
With regard to drinking and driving, probable cause may take the form of any of the following:
- Any routine traffic violation (i.e. running a red light/stop sign, speeding, etc.)
- You were swerving or driving recklessly
- You crashed your car or caused an accident
- If pulled over, the officer smells alcohol on your breath or you appear visibly intoxicated
- The officer sees alcohol in your car (cans/bottles, etc.)
- You consent to a search
Under such circumstances, the officer has the right to pull you over.
A Note About DUI Checkpoints
While they’re not utilized in all 50 states, DUI checkpoints (also known as sobriety checkpoints) are mandatory traffic stops that aim to detect and deter drunk drivers to improve public safety. DUI checkpoints require drivers to speak with an officer before proceeding further. If an officer suspects you are under the influence after talking with you at the checkpoint, he or she may ask you to perform a field sobriety test.
While an officer typically must have probable cause before pulling you over, DUI checkpoints are the exception to the rule. However, law enforcement is required to heavily publicize any upcoming DUI checkpoints to the general public. The DUI check point must also be brief enough as to not infringe on your right against unreasonable seizure (4th Amendment). DUI checkpoint guidelines may vary state by state, so be sure to know your state’s specific rules. Colorado’s specific DUI checkpoint standards are available to view online.
Should you get pulled over, and you’ve been driving under the influence, it may be difficult to remember all the necessary steps to take in order to protect yourself. That’s why we’ve made the following useful printout for you to keep on hand in the event you are pulled over for drinking and driving. Review it now and save it for later — it may be immensely helpful down the road. There is no guarantee that you will not get convicted of a DUI if you drink and drive and get caught. These are simply things to consider if you are ever in this situation as they may prove to be very beneficial in aiding in your defense.
Drinking and Driving Checklist
- Do not admit to drinking to law enforcement. You do not have to answer their questions as you have the right against self-incrimination. It is in your best interest to preserve your rights and state that you are exercising your 5th, 6th, and 4th Amendment Rights.
- Your 5th Amendment right is your right against self-incrimination.
- Your 6th Amendment right is the right to have an attorney present during all questioning and any and all line-ups.
- Your 4th Amendment right is your right against any unlawful search and seizure.
(Note: By stating your rights in this order, you preserve your rights in a meaningful way, in case your case ever does go to trial)
- Be polite and respectful to the law enforcement officer, no matter his or her tone/attitude. If you don’t have anything nice to say, don’t say it at all.
- Do not participate in a field sobriety test. These tests are voluntary, not mandatory. If you are indeed drinking and driving, it is NOT in your best interest to participate in a field sobriety test. If you are even the slightest bit intoxicated, this will only further the evidence they have against you.
- You have the option to take a breath test, blood test or a refusal.
- If you refuse the breath/blood test, you will most likely lose your license for at least 1 year. (Note: This time range depends on each case. Contact a criminal defense lawyer to assess your unique situation)
- If you refuse to a breath and or blood test, they will have less evidence to penalize you in the criminal case. However, the DMV takes a refusal very seriously and will punish you more severely in the DMV case.
- If you take a breath or blood test, the court will know exactly how much you had to drink. The consequences are more severe for higher BAC levels. The DMV case is not as severe when the court is aware of your BAC. (Note: This is not a fit all solution. Each case is different and will be treated as so. Talk to a criminal defense attorney about your unique situation.)
- If you are arrested, you have 7 days to file your response with the DMV. Always request that the officer be present at your DMV hearing.
- Contact an experienced attorney who specializes in DUIs immediately.
NOTE: This is not legal advice. Each case will be determined by the specific facts of the case. Contact a criminal defense attorney to evaluate and advise you on your unique situation
Colin Bresee is an experienced Colorado criminal defense lawyer with roughly 20 years of experience and a focus on DUIs. To schedule a free consultation, call 303-647-4439 as soon as possible.
By Shannon Lynch