DUI arrestWhat are your rights when an officer stops you for DUI?

Each individual stop is different, and therefore it is not possible to have a set of rules that are applicable in each and every situation. Sometimes a person who has absolutely no drugs or alcohol in his system is investigated for a DUI.  This person elect to take the officer’s tests and answer all of his or her questions. Another driver may have had one or two drinks. Still another driver may be far over the legal limit and unable to comply with the officer's requests.  

Regardless of their BAC, most drivers do not realize what is and is not required of them.  In other words, what do you have to do and what can you refuse to do? This section should not be seen as legal advice, but instead as information you can use to make your own independent decisions if you ever find yourself under investigation.


It is easy to forget that vehicle stops, though routine, are a very dangerous part of an officer's job. The officer is approaching a complete stranger without the benefit of knowing if the driver or occupants are armed, dangerous, or unpredictable. The old adage of catching more bees with honey than with vinegar could not be more true than when speaking with an officer. The best thing you can do when stopped is do everything you can to let the officer know you share his number one goal: to have a safe and quick exchange. You do this by being respectful, remaining calm, and being polite.

Additionally, an officer has a great deal of power during a stop. Many times they are pulling you over for a legitimate reason- a tail light out, speeding, unsafe lane change, etc. Even if this is a pretext for a DUI investigation, they can still cite you for this infraction if their investigation proves fruitless. If you have an expired registration or even an expired license, your respect and deference may lead to a warning rather than getting your car towed and impounded.

Thus, the only catch-all that I would recommend in every interaction and situation with a police officer is to be respectful, calm, and polite.  If an officer does not treat you similarly, that is an issue better handled by your attorney in the courthouse.  


With Attorney Jennifer Gerstenzang

Privacy Policy


miranda rightsCAN I REMAIN SILENT?

Just because you are being courteous does not mean you have to give up your rights. Even if the officer does not inform you of your right to remain silent (and there are only certain situations in which they are obligated to do so) you always have that right and the freedom to exercise it.

Again,  you ALWAYS HAVE THE RIGHT TO REMAIN SILENT. This means that if an officer is asking you questions such as "where are you coming from?", "where are you going?", "how much have you had to drink tonight?", "when did you last sleep?", etc., you have the choice to answer these questions or to remain silent.  The officer cannot order you to answer his questions.

Some attorneys may say you should always remain silent. Again, each situation requires its own analysis and considerations. If you are an individual who gets nervous and may say something that could easily be misinterpreted or twisted in its meaning, carefully consider whether you want to answer the officer’s questions. If you do decide to exercise your right to silence, continue to be courteous. For example, if an officer asks you how much you have had to drink, or where you are coming from, you can politely decline to answer. You can say “Officer, I appreciate you are doing your job. At this time I am going to exercise my right to remain silent.”

Another important consideration during an investigation is to realize the purpose of the questions the officer is asking. For example, during a DUI investigation, the officer will try to establish through your statements a “drinking pattern.” In order to do this, he is trying to determine how much you have had to drink, how recently you drank, and when you started and stopped drinking. This will be used by the prosecution’s expert during a jury trial to determine your blood alcohol content at the time of driving. Often times, the sole source of this information is from the driver.

I want to reiterate, you can still be very cooperative and agreeable while choosing to exercising your rights. “Please”, “Thank You”, and “Sir” or “Ma’am” can go a very long way.  


field sobriety tests

The way the officer rates your performance on these tests is done in a way where you generally only lose, rather than score, points. He will note if you step off of a line, or sway an inch or two. He does not write down accolades of your performance for later review. It is only the absence of a mistake on your part that indicates successful completion of the task.

Additionally, as you have probably heard, these tests are difficult to perform dead sober, on a flat surface, with no distractions. You will not be performing these tests on a completely flat, smooth surface and you will certainly not be in an environment free of distractions. Finally, though officers may even be equipped with a camera to capture your performance, more often than not the camera does not capture the field sobriety tests. This means if you recollect doing better on the test than the officer wrote in his report, the court and jury often automatically trust the officer’s rendition versus that of the accused.

Decide for yourself whether you wish to perform the field sobriety tests. If you start the tests and change your mind, you can always let the officer know you do not wish to continue with the tests. If you decline to do the tests, and depending upon the officer’s suspicions, he may take you to the station at that point. The main thing to remember is that whether or not you do these tests is your decision to make. You have the option of either performing or declining to perform the tests.


The preliminary alcohol screening (PAS) device, a.k.a. the handheld roadside breath test, is another test you may not realize is optional** for many drivers aged 21 and over.

If you are not on probation and are over 21 years old, the initial roadside handheld device is not mandatory. (To be clear, if an officer has a breath test machine in the trunk of his car that is not a handheld device, that test is not a PAS device and is not necessarily optional.) The officer may not explicitly or clearly explain that this test is optional. It is up to you whether or not you take the breath test. If you do take the test and score below a .08, the officer may release you. If you score below but close to a .08, the officer may take you to the station for further testing. The officer has great discretion while conducting his investigation.

**There may be some situations in which you must breathe into the PAS. If you are not sure, the best thing to do is ask the officer if he is ordering you to breathe into the device or if you can decline the test.  If the officer erroneously tells you that you must breathe into it then your attorney can argue to have the test excluded later on.  


In California, the law requires you to take a breath or blood test if arrested for a DUI. This is due to something called “Implied Consent”. (California Vehicle Code Section 23612.) Implied Consent requires that if you have been lawfully arrested by an officer who has probable cause to believe you drove while under the influence of alcohol or drugs, then you consent to a test of your blood, breath, or urine. This is to determine your blood alcohol content. The test must be taken at the time of your arrest. You MUST be given a choice between blood or breath. If you have a medical condition requiring you to take an anti-coagulant or if you have hemophilia, you will not have to take the blood test.

The breath test will likely be at the station. The blood test can be done in a medical facility or in a room at the station, provided it meets medically approved standards. The blood must be drawn by a technician, and will not be drawn by the police officer.

If you do not elect to take a test and you refuse both of the tests, you will be subject to additional consequences on top of the sanctions for driving under the influence. For example, for a first offense and refusal, you will have an automatic 1 year suspension of your license. This is six months longer than the suspension would be for a first-time DUI conviction.

The officer must advise you of the potential consequences for refusal to take a test. Even if you do refuse to take the test, the officers will still be able to conduct a forcible blood draw and obtain your blood. The prosecution will also be able to use the refusal against you by arguing you refused because you knew you were intoxicated and guilty of a DUI. Therefore, it is not in your interest to outright refuse to take the test back at the station.

Each stop is unique and the choices you make will depend on your circumstances . However, if you do not know what your options are, you will not be making educated choices. Be informed about your rights so that you can confidently exercise them. Ultimately, the best decision you can make is to drive completely sober and to rely on someone else to drive when you are drinking.