You Have the Right to Remain Silent. So what?

This scene is played out every day, all across the country. Drivers are stopped and arrested for DUI and read their Miranda warnings, either on the road or at the station. People are told they have the right to remain silent and they have the right to speak with an attorney and to have one present before any questioning takes place. Then, the officer questions them about whether they will agree to a breath, urine or blood test.

So, you think, "He just told me I have the right to remain silent and not incriminate myself, and that I could have a lawyer, why should I agree to take a test before talking to a lawyer?" Next, you ask the officer to call your attorney to help you decide if you should take the tests. But, he says you're not entitled to a lawyer before making that decision. Now you're confused.

State's laws about refusal to submit to testing vary around the country. In all states, though, there is an immediate license suspension for refusal, often for a longer period than if you take the test and blow over the limit. In Florida, for example, a second or subsequent refusal can result in an additional criminal charge. Florida, and most other states, permits prosecutors to argue that your refusal demonstrates consciousness of guilt to a jury.

This scenario has led to a judicially created "confusion doctrine". Think of the three very confusing things presented to a DUI suspect: 1) You have the right to remain silent and don't have to say anything that may incriminate you, 2) You can talk to an attorney and 3) You have to decide whether to take a test which might be incriminating without being able to talk to an attorney. 

Some judges will prohibit the introduction of "refusal" evidence if they find that the officer created a genuine confusion on the defendant's part that he could lawfully refuse to answer any questions after invoking his Miranda rights.

What is really going on here?

Breath testing laws around the country are based on the notion that driving is a privilege, not a right, and that your consent to take a chemical test is "implied". However, the "right to remain silent" only protects people from police questioning while in custody - not from giving the police physical evidence. So, while some states afford the "right to counsel' after an arrest, that right isn't afforded until after the police are done with you. 

In most cases, DUI processing takes a few hours and police want to get their paperwork done, get you booked and get back on the road. So, telling you that you have the right to speak with an attorney is mostly hollow. It's the 'right to a lawyer when I'm ready" exception to the constitution. 

The bottom line is that thinking you can speak to a lawyer after a DUI arrest may be a mistake on your part.