DUI Investigation | No Lawyers Allowed
Anyone who has watched a police show in the past 30 years is familiar with the right to speak to an attorney and have one present during questioning. But, that right does not exist in Virginia when you are stopped for a DUI investigation. Virginia courts have long said that you have no constitutional right to speak to an attorney before deciding whether to cooperative with the police.
When police start asking you where you are coming from, where you are going to, and whether you have been drinking, you are being investigated. Even those these questions may seem conversational, they are actually questions designed to give the officer the information he needs to detain you longer and investigate you further. Generally speaking, the less you say during this questioning, the higher likelihood you will be released without being arrested.
The Miranda Warning is the warning you always hear on television shows when someone has been arrested. Your Miranda Rights are the right to remain silent, right to an attorney, and the right to have an attorney appointed if you cannot afford to hire an attorney. These rights came about because of a case called Miranda v. Arizona where the U.S. Supreme Court ruled that a criminal suspect who is both in custody, and subject to questioning, must be advised of these rights.
In Berghuis v. Thompkins the U.S. Supreme Court held that you must explicitly invoke these rights, or anything you say can be used against you. This was against the trend since the ruling in Miranda that said you must affirmatively waive the right. Hence, Miranda put the burden on the police to show you waived your rights, and Berghuis puts the burden on you to show you invoked your rights.
Miranda in DUI Cases
Since Miranda only applies after you have been arrested, and while you are being questioned by the police, it most often does not apply to roadside testing. That does not mean you must cooperate with police in a Virginia DUI investigation. You never have an obligation to answer police questions except in very rare circumstances (generally, when you have created an emergency and the police need information from you to avert harm to others – even then, there is a debate as to whether your silence can lead to criminal charges). You cannot, however, lie to the police.
By declining to answer the police officer’s questions you protect yourself from how your answers may be interpreted by the officer, and later by a judge or jury. It is better to be arrested and win your case at trial, than to give statements that will assure your conviction.
Because Virginia Courts hold that you do not have the right to speak to an attorney during a Virginia DUI investigation, and because the burden of proving you asserted your right to remain silent, and to speak to attorney is on you, it is highly recommended that your remain silent and call our office as soon as the police allow you to use the phone. Some officers will allow you to speak to an attorney prior to taking DUI tests. It never hurts to ask the officer if you can call your attorney. If he says, “No,” then politely inform the officer that you will not answer any questions or perform any tests until you speak to your attorney.