DWI/DUI and Your Rights During a Traffic Stop


If you are arrested for a DWI/DUI, it is important to understand that you have rights. This, however, does not mean you can evade arrest or, in some cases, refuse to give a blood or breath specimen. Rather, it means that you do not have willingly comply with all requests made by the arresting officer.


DWI/DUI And Your Rights During The Traffic Stop


Most DWI/DUI investigations begin when a law enforcement officer observes a potential traffic violation and initiates a traffic stop. Once the officer has turned on his or her emergency lights and sirens, you do not have the right or legal option to continue driving or to drive away from the officer. Doing so would likely result in an additional charge of “evading arrest in a motor vehicle,” which will only make matters worse for you as this is a felony offense.


At this point, the best course of action is simple: Do not drive away. Instead, use your right blinker and begin carefully moving to the right shoulder, out of the flow of traffic. Pulling over in a parking lot is an even better option if it can be done efficiently and carefully.


In terms of constitutional rights, this mandatory stop is considered to be either a temporary detention or arrest. Both invoke your constitutional rights under the Fourth Amendment, which states:


The right of the People to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be, searched, and the persons or things to be seized.


In order for the officer to legally detain you, he or she must be able to plainly articulate the facts (i.e., the probable cause), which supports a showing of a committed traffic violation. In Most DWI/DUI cases, the officer may cite the following traffic violations as probable cause:


  • Speeding,
  • Driving without headlights on at night,
  • Failure to maintain a single lane, and/or
  • Failing to stop at a designated stop sign or traffic light.


Keep in mind that the temporary detention or arrest is not the time or place to question the arresting officer or make legal arguments. Always be polite and remember that the less said by you during the arrest or temporary detention, the better. Our advice is to wait for an experienced DWI/DUI attorney to examine the evidence supporting or refuting the validity of the initial traffic stop and make appropriate arguments during the course of your DWI/DUI case.


You will likely have four opportunities to make legal arguments and challenge the validity of the traffic stop:


  • Administrative License Revocation (ALR) Hearing,
  • The initial court appearance where probable cause must be examined and evaluated by the court,
  • A Motion To Suppress hearing, which is a hearing wherein the defense requests that the court exclude certain evidence from trial, and
  • At trial, if the charges are not dropped or a plea agreement is not reached beforehand.


Your Legal Rights


You have the right not to be stopped without legal justification by means of probable cause. If the arresting officer lacks probable cause, then he or she has violated your Fourth Amendment rights during initial contact and the prosecution will have very little evidence to build a winning case as all evidence gathered after the illegal stop is likely inadmissible.


DWI/DUI and Your Rights during Initial Contact


After the officer initiates the traffic stop, whether invalid or not, he or she will make initial contact with you. You will be asked for your license and registration and the officer may try and engage in small talk in order to gather evidence against you.


The officer will likely ask the following:


  • Where are you coming from tonight?
  • Where are you headed?
  • Have you had anything to drink recently?
  • How much have you had to drink?
  • Are you coming from a bar?


Your rights: As you talk with the officer during the initial contact, remember these things:


  • The officer is not legally required to read you your Miranda rights at this point.
  • Your conversation is almost certainly being recorded by the dash camera in the officer’s vehicle and/ or the officer’s body camera, which is attached to his or her uniform.
  • Most importantly, you have the right to remain silent even at this initial stage and state that you would prefer to talk to your attorney before answering any questions.


DWI/DUI and Your Rights Regarding Blood and Breath Tests


The arresting officer may request either a blood or breath specimen from you. If done correctly, the officer will hand you a copy of the statutory warning or Form DIC-24 and read it to you as you follow along.


We recently discussed your rights regarding blood and breath tests. Click here to find out more.


DWI/DUI and Your Rights during the Formal Arrest


If You Are Formally Arrested for a DWI/DUI, the arresting officer must recite your Miranda rights, which reads:


You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford one, the court will appoint one to you.


If you have been arrested for a DWI/DUI, contact our office today to learn how we can help you.