Silence CAN be Used Against You in Your California DUI Case


Those arrested for a California DUI, or any criminal case for that matter, have had their 5th Amendment right to remain silent significantly limited by the United States Supreme Court last month. The United States Supreme Court, in Salinas v. Texas, held that silence can be used as a sign of guilt when the person is not under arrest and they have not been read their Miranda rights.

Houston police were investigating a double homicide and brought suspect, Genovevo Salinas, to the station to ask him questions. Salinas was not under arrest nor had he been read his Miranda rights. Salinas cooperated and answered all of the officers’ questions. That is, until the officers asked whether the shotgun shells that were found at the scene would match a gun found at Salina’s home. Salinas remained silent.

At trial, the prosecution was able to use Salina’s silence as evidence of his guilt over the defense’s objection. Salinas was found guilty and sentenced to 20 years in prison.

After a lengthy appeals process, the United States Supreme Court heard the case and dropped a disturbing bombshell opinion: If you’re not under arrest and have not been Mirandized, but are questioned by officers, silence can be used as a sign of guilt in a later prosecution unless you specifically state that you are invoking your 5th amendment right to remain silent.

So how does this affect California DUI law?

Officers cannot arrest someone for a DUI unless they have probable cause to believe that someone is driving drunk. And officers usually find probable cause after the suspect is pulled over and asked a few questions. I have frequently advised that people should not volunteer any information. I have referred to youtube videos of people literally remaining silent at checkpoints. From now on, if you refuse to answer an officer’s questions when pulled over for a DUI, it can be used as a sign that you are intoxicated.

Essentially, this means that unless you know your 5th amendment right against self-incrimination and specifically, unequivocally assert it, you must answer an officer’s questions.

The majority of the times when a person says, “I’m invoking my 5th amendment right to remain silent,” is immediately after being informed that they can, in fact, remain silent. How often does someone say that without being Mirandized? Rarely.

For those who don’t know of their 5th amendment right, or who may know of it, but don’t know that they must state that they are asserting it, the United States Supreme Court has created a troubling predicament of “damned if you do and damned if you don’t.”

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