People come to me with this question often. “If I’m driving and get pulled over for DUI, what do I have to do?” The answer is simple – nothing. You are not required to submit to any physical examination, make statements, or take breathalyzer exam if you are pulled over for DUI. This is guaranteed by the Fifth Amendment of the US Constitution.

Inevitably, I am asked a follow-up question – “won’t I look guilty?” When answering this question, I must qualify that, as a defense attorney, I must view every circumstance as if I were at trial defending the case. The fact is if you do not provide the law enforcement evidence of guilt (such as admitting to drinking, submitting to field sobriety tests and doing poorly, or taking a breath test at the scene of arrest), it will make it easier to defend the case. But keep in mind, other evidence can be used against you. For instance, swerving, staggering, slurred speech, the smell of alcohol, etc. can all be used by the prosecutor to argue that you were intoxicated (assuming such evidence supports intoxication)

One other thing to keep in mind – if you were arrested for DUI, generally, you are offered TWO types of breathalyzer exams. The first is one at the scene, which is referred to as a “preliminary breath test.” As discussed above, you cannot be compelled to submit to this exam.

The second one is offered after arrest at the police station. Recently, law enforcement has switched to testing persons on a device called the EC/IR II. It looks oddly like a computer from the 90s.

When offered this test, you are not required to submit to the test. HOWEVER, to compel people to take this exam, Virginia has what is called an Implied Consent Law. This law states that by merely driving on a Virginia highway, you have consented to have your blood or breath testing. If you refuse to take this exam at the station, you will likely be charged with “civil refusal” and, if convicted, you are prohibited from driving (for any reason) for an entire year. A second charge of this is a criminal offense.

If you have a job that requires driving, you must keep in mind the civil refusal charge. Often when individuals refuse, they are charged with both DUI and civil refusal. When going to court, the prosecutor will often offer to drop the civil refusal if the person pleads guilty to DUI. Though there is a mandatory driver’s license suspension with a DUI conviction, the person is usually allowed to obtain a restricted driver’s license to drive for limited purposes including work. In many of my cases, the defendants were compelled to take a DUI conviction because they had to drive for work.

Clearly, you can avoid facing such difficult questions by abstaining 100% from alcohol when you may have to drive.

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