Probably the single most common type of case I see as a Colorado criminal
defense attorney is the
Driving Under the Influence case, also called a DUI. To me, it’s a charge that spans every sector
of our society. Rich and poor, young and old, man and woman, I have represented
every type of person in a DUI. DUI is, unfortunately, a feature of our
society where alcohol and cars are both ubiquitous.
The commonness of the charge is why I find it interesting when I hear the
misconceptions surrounding DUI law. Everyone knows what a DUI is, but
they don’t know what their obligations are when they are pulled
over for one. In this post, I hope to clarify a few common misconceptions
I hear by answering some of the most frequently asked questions about DUI.
1.The police followed me for two miles before pulling me over. Isn’t
Like anyone on the road, the police are allowed to ride behind you, even
for a couple of miles. Riding behind someone on a public road requires
no special exercise of police power, and does not infringe on your rights.
It is true that the police officer may be watching you to see if he or
she can gather reasonable suspicion of a traffic offense, and thus have
a lawful basis to initiate a traffic stop, but it is not entrapment. Entrapment
is only a pertinent issue if the officer induces you to do something unlawful;
it is not entrapment to watch and see if you do something unlawful.
2.I was only pulled over for speeding. Isn’t it illegal for the police
to start investigating me for DUI?
As in so many things in the law, it depends. A police officer may not pull
you over in your car, unless they have reasonable suspicion that a crime
was committed, is being committed, or is about to be committed. Reasonable
suspicion means exactly what it says: the officer must be able to state
specific reasons why he or she suspects you. So, let’s say the police
officer pulled you over for the traffic offense of speeding. Her reason
to suspect you of that offense is that she clocked you on her correctly
calibrated radar gun traveling 40 MPH on a stretch of road she knows has
a speed limit of 30 MPH. She initiates the stop, and you pull over. At
that moment, she could no more start investigating you for DUI than she
could start investigating you for the disappearance of Jimmy Hoffa. She
has no reason to suspect you of either.
But, let’s say she walks up to your driver’s side window, and
sees an open can of beer in your cup holder when she leans in to ask for
your license and registration for the speeding offense. If the traffic
stop for the speeding offense was legitimate, and she legally pulled you
over, she is also allowed to investigate any other offense she may gain
reasons to suspect you of while she is conducting that legitimate stop.
3.The officer started questioning me about whether I had been drinking, but
he didn’t read me my rights. My statements have to be thrown out
of court, right?
Probably not. When people talk about police “reading their rights,”
they are talking about the constitutional rights that were addressed in
the U.S. Supreme Court decision
Miranda v. Arizona. Before the Miranda decision, there was a problem in our society where
the police would take people into custody and subject them to extremely
aggressive interrogation that bordered on, or even crossed over to, abuse.
They even had a name for it: giving someone the third degree. The third
degree resulted in a lot of coerced confessions. What people who were
getting the third degree didn’t know is that all they had to do
to stop the interrogation was to invoke their fifth amendment right to
remain silent, and their sixth amendment right to an attorney.
Everyone who interacts with the police can exercise those rights at any
time, but people often didn’t understand that they had that option,
so abuse was widespread. In
Miranda, the Court said that if the police had someone in custody and wanted to
question them, they had to first tell that person about their rights to
remain silent and to an attorney, and get a knowing waiver of those rights
before the interrogation could proceed. Any statements made during an
in-custody interrogation absent that advisement and waiver of rights is
inadmissible in court.
However, during a traffic stop, the law says that you are not “in
custody.” That means that an officer can question you without telling
you about your rights or getting a waiver without violating the
Miranda rule. But remember: everyone who interacts with the police can exercise
their rights at any time. Even if the officer doesn’t explain that
it is an option, you can always tell them, “I’m sorry officer,
I never make statements to police without an attorney present.”
Moreover, you are also free to decline taking a “Presumptive Breath
Test” or performing “Roadside Maneuvers”
4.So I am free to simply ignore the police?
You have the right to remain silent and to an attorney during police questioning.
That doesn’t mean you can necessarily ignore the police. As a person
driving in the state of Colorado, the police are authorized to make certain
demands of you in certain circumstances.
First, the law states that a “peace officer may stop any person who
he reasonably suspects is committing, has committed, or is about to commit
a crime and may require him to give his name and address, identification
if available, and an explanation of his actions.” There are good
arguments that that last provision may conflict with citizen’s rights
against self-incrimination, but there is little doubt that a police officer
conducting a lawful traffic stop may require a person to identify themselves.
Second, by driving in Colorado, you are deemed to have “expressed
consent” to the taking of a breath or blood sample if the officer
has probable cause to suspect an alcohol related driving offense:
“A person who drives a motor vehicle upon the streets and highways
and elsewhere throughout this state shall be required to take and complete,
and to cooperate in the taking and completing of, any test or tests of
the person's breath or blood for the purpose of determining the alcoholic
content of the person's blood or breath when so requested and directed
by a law enforcement officer having probable cause to believe that the
person was driving a motor vehicle in violation of the prohibitions against
DUI, DUI per se, DWAI, or UDD.”
If the officer has probable cause to suspect you and invokes this rule,
the law requires you to comply. However, people can and do refuse to comply.
Law enforcement does not and cannot take such samples by force. If a person
refuses the “expressed consent” law, then the authorities
will not have a scientific breath or blood analysis to use against the
person at any subsequent trial. What they can often do, however, is use
the fact of your refusal itself as evidence against you.
Additionally, there is an automatic revocation of your driver’s license
based on a person’s refusal, whether or not the person is convicted
or even charged with DUI.
5.So what do I do when an officer pulls me over for DUI?
It is impossible to give generic advice that would be correct in all possible
scenarios, so I can’t give such advice.
What I can say is that rights are valuable things and we don’t give
away valuable things for nothing. I believe it is important that citizens
know their rights so they can decide how to exercise them. A lawyer, well
versed in the criminal law, can be extremely helpful in making the right
decisions. If you are facing a DUI charge, call Feldmann Nagel, LLC. We
can help you understand your options and help you get through this difficult
A Colorado DUI attorney at our firm can be reached at (888) 458-0991.