You’ve just been arrested for DUI. And, like in the movies, the officer reads you the "Miranda" rights: "You have the right to remain silent", he tells you, "You have the right to an attorney"
And then the very next thing he asks if if you’ll take a breath or a blood test.
Now, wait a minute, you think to yourself. He just said I have a right to remain silent. Why should I agree to take a test? The 5th Amendment says I don’t have to incriminate myself. Something’s not right here…. And anyway, you think, do I really have to take a test? Are those breathalyzers accurate? Would a blood test be better?
Well, you think, he said I have a right to counsel: I’d better call my lawyer and get his advice before I decide wheher to take a test or not, and which one I should take.
So you tell the officer you wish to remain silent, and you want to make a call on your cell phone to your attorney. "Are you refusing to take a test?" he asks darkly. "I just want to talk to my attorney," you reply. "Your funeral," the officer says.
Now what did he mean by that?
What he meant was that, depending upon the state, a refusal to submit to chemical testing will trigger increased penalties — mandatory jail terms and longer driver’s license suspensions over and above the usual DUI penalties — and may even be considered a separate criminal offense. And, in most states, the jury will be instructed by the judge that this refusal can be viewed as "consciousness of guilt".
Believing you have constitutional rights in a DUI case can be very dangerous. What happened was very common — what is called "officer-induced confusion". Three apparently contradictory things are communicated to the (confused and very frightened) person arrested for DUI: (1) you can remain silent and refuse to possibly incriminate yourself, (2) you can consult with a lawyer, and (3) you have to take a chemical test that may incriminate you — without speaking with an attorney. What would the normal person conclude?
Well, let’s take a closer look at the laws involved here…
First, the so-called "implied consent" laws say that a person driving on the state’s highway impliedly consents to a chemical test when requested by an officer. Second, the Fifth Amendment right to "remain silent", or not incriminate yourself, protects you from custodial interrogation, not from having to give physical evidence. Third, the U.S. Supreme Court has been vague on how the right to counsel applies in a DUI case (the well-known "DUI double standard").
As a result, some states permit the right to counsel after an arrest; most, however, deny the arrestee any access to a lawyer in a DUI case until after the police are through with him — even if he is arrested, taken to the station, and held in handcuffs until he is tested (the post-arrest process can take up to two hours or more). So when the officer said you had a right to counsel, that wasn’t quite true. He should have said, "You have a right to counsel….usually, but since this is a DUI arrest you can’t talk to one for an hour or two". (As we say, "the DUI exception to the Constitution".)
What if you change your mind five minutes later and agree to take a test? Some courts have reasoned that if a short delay does not affect the value of the test, there is no good reason for not letting the suspect take the test. Most states, however, will not let you change your mind. As one appellate court bluntly put it, "One offer plus one rejection equals one refusal and one suspension". Dunlop v. DMV (156 Cal.App.3d 279).
Translation: tough luck all around. Granted it’s all very confusing, and the courts don’t all agree, but you are going to be prosecuted and punished for refusing to take a test. Put another way, believing you really have a constitutional right not to incriminate yourself and to talk with an attorney in a DUI case can get you into a lot of trouble.
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