When Do You Have a Right to an Attorney After a DUI Arrest?
The right to an attorney in a DUI case is the same right that you have in other criminal matters. You may be surprised to hear that the police can require you to take a breath test or standardized field sobriety tests before you have the right to an attorney. In fact, your right to have an attorney begins when any “custodial interrogation” begins, not when you are pulled over.
“Custodial” means that a reasonable person would not feel free to leave the situation. Courts ask whether the situation presents the same coercive pressures as a “station house questioning” at the police department. (cite). Routine traffic stops are not custodial situations. “Interrogation” means any conduct by police by which the police know or should know that they might get an incriminating response from the person under arrest. Basic questioning is not necessarily an interrogation. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Thompson v. Keohane, 516 U.S. 99, 112 (1995).
Before custodial interrogation begins or at the time when it begins, you must be advised of your Miranda rights. These include that you have the right to remain silent, that anything you say can be used against you in court, that you have the right to an attorney, and that if you can’t afford an attorney, one will be appointed for you if you so desire. Miranda v. Arizona, 384 U.S. 436, 444 (1966). At this point in time, you may (and probably should) invoke your right to an attorney under the Fifth Amendment. The attorney can help protect your rights and preserve defenses during questioning by the police.
The method you use to invoke your right to an attorney must be clear and unambiguous. Berghuis v. Thompkins, 560 U.S. 370 (2010). Remaining silent, saying “Maybe I should get a lawyer”, or “Do you think I need a lawyer?” is not enough. Instead, you should state affirmatively that you want a lawyer. At this point, the police are supposed to stop all questioning until you have a lawyer or until you initiate further questioning. If there is a break in the custodial interrogation – for example, if they send you back to your cell and then call you back in several days later) – you should protect yourself by stating again that you want an attorney, if your attorney is not present.
There is the right to an attorney under the Sixth Amendment too. This right is narrower in scope and offense-specific, meaning your attorney only needs to be present if you are being asked questions about the specific charges for which you have retained counsel (such as the DUI charges). You have this right starting after you have been formally charged with a federal crime or state felony crime. Gideon v. Wainwright, 372 U.S. 335 (1963). As a result, the police can ask you about unrelated, uncharged offenses without your retained attorney present.
If you are facing DUI charges, seek out an attorney who knows the Oklahoma criminal law system inside and out. Clint Patterson, Esq., of Patterson Law Firm, a former Tulsa prosecutor now using his trial experience and expert-level knowledge of DUI science to defend drivers, has the experience and the insight to evaluate the strengths and weaknesses of your case. To schedule a case evaluation, visit Patterson Law Firm online or call Clint’s office at (918) 550-9175.