If I am stopped and the officer asks me if I’ve been drinking, what should I say?

If you’re stopped and an officer asks if you’ve been drinking, you don’t have to say anything. The police have the right to some information, such as your name and date of birth, but you don’t have to answer any incriminating questions. However, refusing to answer the officer’s questions doesn’t mean you're off the hook; you can still be arrested for drinking and driving. Read more to learn what to say when an officer asks if you’ve been drinking.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 14, 2021

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You have several options if you are stopped by law enforcement for suspicion of drunk driving and asked if you’ve had anything to drink. All of these options have their own potential consequences, depending on how much you’ve had to drink and the personality and mood of the individual officer handling the DUI stop. If you have been drinking and are over the legal blood alcohol (BAC) limit of 0.08, nothing can keep the officer from arresting you for drunk driving. But, choosing the appropriate option for your particular situation may help your DUI case down the road.

Remaining Silent During a Drunk Driving Stop 

If you have been stopped by a law enforcement officer for drunk driving, the first option is to remain silent. Although getting behind the wheel after drinking any amount of alcohol shows poor judgment, as long as you are under the legal BAC limit you cannot be arrested for drunk driving. It is important to remember that under the Constitution, you have a right against self-incrimination. This means, if you have been drinking, you do not have to answer the law enforcement officer’s question at all. You may answer with, “I’d rather not say,” and request to speak to an attorney. Depending on the state, you may not have a right to an attorney until you are asked to take a field sobriety test or until you are arrested. However, the request for an attorney can never be used against you. This will let the officer know that you are aware of your rights. A competent DUI attorney can argue for whether you had the right to an attorney at the time or not.

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Complying with Officer Requests During a DUI Stop 

Remember that the officer will be looking for signs of intoxication, and can even use what you say in what may seem like small talk against you. While the officer does have the right to some information, such as your name and date of birth, you do not have to answer any incriminating questions. However, refusing to answer the officer’s questions does not mean that you should refuse to comply with other requests of the officer. If you are asked to give him or her your license and registration, you should comply. You can still remain silent during anything the officer asks you to do. This way, they won’t be able to use any admission of guilt or denial against you later on. This does not mean that you won’t be arrested or tested for blood alcohol content, but it does mean that your attorney will be able to build a better defense if you do not say anything to the police that will assist them in charging you for a DUI.

Honesty During a Drunk Driving Stop

You can also choose to be honest at a DUI stop. Where it is appropriate and true, you can tell the officer that you have had one or two drinks. It’s also helpful to tell the officer the time of your first drink, as well as the time of your second. As long as there has been at least an hour between each drink, this is not an incriminating statement to make. Further, it may explain the odor of alcohol on your breath. However, this admission will often give the officer cause to request that you take a field sobriety test and a blood alcohol test. There is also the chance that the officer will believe that you’ve had only this much to drink. If the officer didn’t stop you for any other reason, he may let you go on your way.

Worst Defense During a Drunk Driving Stop

Lying is the worst thing you can do during a drunk driving stop. Lying to a police officer is almost always futile. It will damage your credibility, which will hurt your case. For instance, if you have had six drinks, and you tell the officer that you have had two drinks, or nothing to drink at all, the officer will determine that you have lied to them once you take a Breathalyzer. This will always look bad to a judge and jury. 

If you believe that you are over the legal BAC limit, the best case in this situation is to remain silent. Also, you should remember to always be respectful to the officer, as this will ensure the best treatment you can get. When the trial date for your DUI case finally arrives, the officer will not be able to use your bad attitude in court against you. Consult a DUI attorney for advice on how to handle a drunk driving stop, and how to prepare your DUI case after an arrest.

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