DUI/DWI Rights: What to Do If Pulled Over for Drunk Driving
Being pulled over on suspicion of drunk driving is a stressful experience that can have lasting legal consequences. A DUI (Driving Under the Influence) or DWI (Driving While Intoxicated) conviction can mean jail time, heavy fines, license suspension, ignition interlock devices, increased insurance rates, and a permanent criminal record. Knowing your rights before you are in that situation — not after — is essential.
During the Traffic Stop: Your Rights
DUI Stop Rights Card — Know Before You Go
- You must provide your driver's license, registration, and proof of insurance when asked.
- You have the right to remain silent beyond identifying yourself. Politely say: "I am invoking my right to remain silent."
- You do NOT have to answer questions like "Have you been drinking?" or "Where are you coming from?"
- You do NOT have to consent to a search of your vehicle. Clearly state: "I do not consent to a search."
- You have the right to refuse to step out of the vehicle initially, but if ordered to by police, comply.
- Stay calm, be polite, and do not argue or physically resist — do that in court, not on the roadside.
Field Sobriety Tests: Can You Refuse?
Field sobriety tests (FSTs) are a series of physical tasks designed to give officers probable cause to arrest you. The three standardized tests approved by the National Highway Traffic Safety Administration (NHTSA) are the Horizontal Gaze Nystagmus (eye tracking), the Walk-and-Turn, and the One-Leg Stand.
In most states, you have the legal right to refuse field sobriety tests. Unlike chemical breathalyzer tests, FSTs are generally not covered by implied consent laws. However, refusing may give officers another reason to arrest you, and your refusal can be used as evidence of consciousness of guilt at trial. FSTs are notoriously unreliable — factors like age, weight, medical conditions, uneven pavement, poor lighting, and even legal medications can cause people to fail. Many DUI defense attorneys recommend refusing FSTs politely.
Breathalyzer Refusal and Implied Consent Laws
Every state has implied consent laws, which mean that by operating a vehicle on public roads, you have implicitly consented to chemical testing (breath, blood, or urine) if lawfully arrested for DUI. This is different from field sobriety tests and roadside breathalyzers (preliminary breath tests).
- Preliminary Breath Test (PBT): The portable device used at the roadside before arrest. You can usually refuse this without the full implied consent penalties, though refusal can support probable cause for arrest.
- Post-arrest evidentiary breath test: The breath test administered at the station after arrest on a more accurate machine (like an Intoxilyzer). Refusing this test triggers implied consent penalties.
- Consequences of refusal: Automatic license suspension (often 6 months to 1 year for a first offense, longer for subsequent), refusal can be used as evidence against you at trial, and in some states refusal is a separate criminal offense.
- Blood tests: Police generally need a warrant to draw blood against your will after the Supreme Court's decision in Birchfield v. North Dakota (2016).
The decision to refuse a chemical test is one of the most consequential choices you face during a DUI stop. The answer depends heavily on your state's laws, the penalties for refusal vs. conviction, and your actual BAC. This is why you need a DUI attorney — ideally one you have already identified before you need one.
The DUI Arrest Process
If you are arrested for DUI, here is what to expect:
- Arrest and booking: You will be handcuffed, transported to the police station or jail, photographed, and fingerprinted. Invoke your right to remain silent and your right to an attorney immediately and clearly.
- Chemical testing: You will be asked to take a breath or blood test. Your decision here triggers implied consent consequences if you refuse.
- Detention: You will be held until you are sober or until bail is arranged.
- Arraignment: Your first court appearance where you enter a plea. Never plead guilty at arraignment without consulting an attorney.
- DMV hearing: Separate from criminal proceedings, you typically have only 5 to 10 days after arrest to request a DMV administrative hearing to contest your license suspension.
License Suspension: Administrative vs. Criminal
A DUI arrest triggers two separate processes that both can result in license suspension:
- Administrative suspension: Imposed by the DMV automatically, often within days of your arrest, based solely on the officer's report that you either failed the chemical test or refused it. You have a short window (often 7 to 10 days) to request an administrative hearing to contest this suspension. This process is independent of whether you are convicted criminally.
- Criminal court suspension: If convicted of DUI, the court will impose a separate suspension as part of your sentence. In most states, these suspensions run concurrently.
- Hardship license: Many states allow you to apply for a restricted license to drive to work, school, or medical appointments even while suspended. Often requires an ignition interlock device.
Common DUI Defenses
- Unlawful stop: If the officer lacked reasonable suspicion to pull you over, all evidence gathered may be suppressed. Traffic stops must be based on observed violations or reasonable articulable suspicion of criminal activity.
- Improper FST administration: Officers must follow NHTSA guidelines exactly. Failure to do so can undermine the reliability of FST results.
- Breathalyzer calibration and maintenance: Breath test machines must be regularly calibrated and maintained. Maintenance records are discoverable and can reveal machine errors.
- Rising BAC defense: Alcohol continues to absorb into the bloodstream after drinking. Your BAC at the time of driving may have been below 0.08% even if the test showed higher results 30-60 minutes later.
- Medical conditions: Acid reflux, GERD, diabetes (producing acetone), and some medications can produce false positives on breath tests.
- Mouth alcohol: Residual alcohol from mouthwash, burping, or dental work can skew breath test results. Officers are supposed to observe you for 15-20 minutes before administering the test.
- Miranda violations: If police failed to read you your rights before a custodial interrogation, statements you made may be suppressed.