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 that entrapment?
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 Margulis. We can help you understand your options and help you get through this difficult situation.
A Colorado DUI attorney at our firm can be reached at (888) 458-0991.