Wednesday, July 24, 2024

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Know What To Say If Arrested For DUI

Most DUI suspects in California know they have the right to remain silent. They have heard it countless times on television but can have difficulty exercising the right if they have been drinking. If they decide to talk to the police they can be misquoted or have their statements misinterpreted. Most of the time it is best to just say nothing.

That was until the California Supreme Court’s recent decision in People v. Tom (Docket No. S202107 – August 14, 2014). The Tom case involved a DUI suspect who broadsided another car while going dangerously fast and killed a young girl and seriously injured her sister. The Tom Court held it was permissible to introduce his silence as evidence of a “consciousness of guilt” because he did not expressly invoke his Fifth Amendment right to remain silent. The prosecutor argued that his reckless disregard for their welfare and safety was evidenced by the fact that he made no inquiries concerning their injury status after being arrested. In other words, his silence was used against him.

Justice Liu wrote a stinging dissent that was joined by Justice Rylaarsdam and approved by Justice Werdegar. However, they were outnumbered 4-3 and this opinion becomes binding precedent on all trial courts in California unless it’s reversed by the United States Supreme Court.

In law school there is a saying, “hard cases make bad law.” Richard Tom may well deserve a prison sentence, but the Court’s ruling will now be exploited by law enforcement and prosecutors to convict citizens based on their refusal to talk to the police. This is a dangerous precedent.

What the Court held in Tom is that one who is arrested for driving under the influence in California needs to unambiguously invoke his or her Fifth Amendment right to remain silent or the silence may be used against him or her. It’s absurd, but if arrested on suspicion of drunk driving, or driving with a .08 percent or higher alcohol content, politely say to the officer, “I hereby invoke my Fifth Amendment right to remain silent.” Then say nothing more about what you were doing or how you were feeling or what you had to drink or when you drank it.

If you need counsel or representation on your Northern California DUI charges, please contact Board-Certified DUI Defense attorney Paul Burglin.

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Paul Burglin

Paul Burglin

Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been specializing in DUI defense for more 35 years After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense (as approved by the American Bar Association) and co-authors the two-volume treatise, "California Drunk Driving Law." He is past Dean of the National College of DUI Defense ( and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program. He has been selected to the 2021 Northern California Super Lawyers list and is A-V rated by Martindale-Hubbell.

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