If I’m Stopped for Driving Under the Influence, Can I First Talk to an Attorney?

For many people, their first contact with the criminal justice system happens when they are charged with drunk driving. When someone is stopped for suspicion of drunk driving or DUI, they often become extremely nervous and overly chatty. They may think that they can talk the police officer into letting them go, or that being cooperative and doing all roadside tests will convince the police not to arrest them. Most people simply do not know their rights or know what to do when pulled over by the police on suspicion of drunk driving.

Michigan law takes driving while impaired very seriously. It is against the law for anyone to drive while:

  • Intoxicated, or impaired, by alcohol, controlled substance, or other intoxicating substance.
  • With a bodily alcohol content of 0.08 or more.
  • With a bodily alcohol content of 0.17 or more.
  • With any amount of cocaine or a Schedule 1 controlled substance in your body.

In Michigan, there are two primary charges dealing with driving under the influence of drugs or alcohol (many people use the term DUI):

Additional charges apply for those younger than 21. Penalties for a first offense may include fines, jail time, community service, a restricted driver’s license, points on your driving record. Penalties become increasingly severe for subsequent offenses.

What Happens if I Am Stopped?

Even though you have been stopped for possibly driving under the influence of alcohol or drugs, you have legal rights. Being well-informed is the first step towards protecting your rights. If you are stopped on suspicion of drunk driving, what you do and say makes a difference. Therefore, it is best to know how to react and how to avoid escalating the situation. Remain calm (even if you have to fake it) and do not become antagonistic. Keep in mind that you do not have to state that you have consumed alcohol or drugs, and certainly do not volunteer specific information about any substances you may have consumed. Contrary to what you may have heard, you do not have to submit to field sobriety tests, which tend to be subjective and unreliable. You do have the right to have the stop recorded.

If the police stop you because they believe you are driving under the influence, you probably feel that you need to talk with your attorney. Most people think they have a right to an attorney but are understandably confused about the circumstances.

When people complain that they were not read their rights, they usually mean the Miranda Rights. These rights refer to a 1966 United States Supreme Court case called Miranda v. Arizona, which protects a person’s right to remain silent and not respond to questioning after being arrested. The Miranda warnings protect the 5th Amendment Right to Remain Silent, but also the 6th Amendment Right to counsel. The Supreme Court made this decision because the police interrogations at that time were often inherently coercive. The words do not have to be read in every situation. If the police arrest someone, before they question the arrested person, they must advise him or her of their Miranda Rights. Failing to do so means any statement made in violation of this rule can be suppressed or excluded.

However, it is important to understand that technically, you are not in police custody at the time you are pulled over. You are merely being questioned by the police. Typically, after a DUI suspect is pulled over, the police ask basic questions such as whether the person has had anything to drink. Many people will respond, “oh, just a beer with dinner,” which is probably an underestimation. At that point, the police will go on to ask more questions. Therefore, a big portion of the police investigation happens before the person is arrested or in custody. Therefore, it is important to say as little as possible before speaking to a lawyer.

Your Right to Have a Lawyer Present

There is no right to counsel during a pre-arrest roadside questioning or a booking procedure. Generally, the right to counsel applies when the accused individual has been formally charged. Even though you may not be able to talk with your attorney when you have been stopped and are being questioned, you do have rights. You are not required to incriminate yourself in order to reply to questions posed by the police. Therefore, you should state clearly that you want your attorney to be present during questioning and request that you be permitted to contact your attorney at the earliest possible time. If you have already answered some questions, you can still request an attorney, and all questioning must stop until the attorney is present.

Do I Have the Right to Make a Phone Call if I Am Stopped?

There is no Michigan law that allows an individual to make a phone call when stopped. Some police agencies have regulations allowing an arrested person to make a phone call. However, in general, the right to make a phone call is actually a formality permitting the arrested person to call a family member or an attorney. If the person is not allowed to call an attorney, it may give rise to a defense on the grounds of self-incrimination and denial of the right to counsel, as provided by the 5th and 6th Amendments.

However, Michigan courts have recognized that someone accused of DUI should be allowed a reasonable opportunity to telephone an attorney before deciding whether to submit to a breath test. Opinions are divided on this point. Some hold that if the police do not allow this and as a result, the defendant refuses to submit to the breath test, the refusal is usually considered reasonable. That means it should not cause a license suspension under the implied consent law. Others hold that although permitting attorney consultation before the test is good police practice, it is not required.

If you are stopped for driving under the influence, be polite, but avoid answering any potentially incriminating questions. Then call an attorney as soon as possible.

Posted in: Drunk Driving
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