When you are pulled over for suspicion of driving under the influence of alcohol, you are probably afraid of what could potentially happen to you. The next few minutes could lead to very serious consequences. That is why you should be prepared for the question most police officers ask drivers who are pulled over for DUI: “Have you been drinking?”
This question may seem harmless to you, but the way you respond could have a huge impact on whether you are arrested for DUI. Our experienced DUI lawyers have had many clients who answered this question the wrong way. That’s why we want to explain the best way to answer this question.
What Officers Need to Arrest You for DUI (VC 23512)
In order to place you under arrest for DUI, all a police officer needs is “probable cause.” This essentially means that the facts and circumstances within the police officer’s knowledge would lead a reasonable person to believe that you committed a crime. Probab
le cause cannot come from an officer’s own suspicion, but must come from specific facts and circumstances.
Therefore, if you wish to avoid arrest, you do not want to give the officer probable cause to arrest you. So, how do you answer the question “have you been drinking?” in a way that is not a lie and doesn’t cause the officer to have probable cause to arrest you?
“I’ve Had Two Beers” (VC 31)
For some reason, a common response to “have you been drinking?” is “Yes, I had two beers.”
People usually settle on “two beers” because they believe the officer will accept this answer and because they think two beers is not enough to impair your driving. However, admitting to drinking “two beers” is not a good answer.
When a police officer asks “have you been drinking?” the goal is to try to get you to admit to drinking. An admission that you consumed alcohol is enough to establish probable cause to arrest you. If you tell a police officer you had two beers when in fact you know that is not the truth, you are lying to a police officer. Lying to a police officer is a separate crime pursuant to California Vehicle Code Section 31. A conviction for this crime could result in you serving up to six months in county jail and paying up to $1,000 in fines.
So, what is the proper response to “have you been drinking?”
What to Say When Police Ask “Have You Been Drinking?”
If you have not been drinking, you can honestly answer “no” to this question. However, if you consumed even the tiniest amount of alcohol, you should not lie and also should avoid incriminating yourself.
What we advise everyone who we have represented, as well as all of our personal friends, is merely to answer the officer by saying, “I have been advised by a very experienced law firm not to answer any questions”
Your answer will not incriminate you in any way. This answer will not provide the police officer with any ammunition to later testify that your statements provided him the probable cause he needed in order to arrest you.
You should not face DUI charges without the help of an experienced DUI defense attorney.