‘Silence Isn’t Defiance, It’s Protection’

When a driver is pulled over by police and questioned for suspicion of driving under the influence, most lawyers recommend saying as little as possible. All drivers in Colorado have the Fifth Amendment right to remain silent and to “politely decline answering questions” beyond providing their name, license, registration and insurance information, says Jay M. Tiftickjian, a DUI attorney at Tiftickjian Law Firm in Denver. 

“I once represented a client who was pulled over late at night after leaving a dinner party. The officer claimed he smelled alcohol and immediately began asking her questions like, ‘How much have you had to drink tonight?’ and ‘Where are you coming from?’” Tiftickjian says. “These kinds of questions seem harmless in the moment. Wanting to appear cooperative, my client admitted to a couple of glasses of wine and tried to explain herself.”

Those few words became the backbone for the prosecution’s case against her.

“There was no video showing poor driving, and her breath test was just barely above the legal limit,” he says. “But her own statements convinced the jury that she was impaired.”

By contrast, a different client exercised his right to remain silent and ended up in a more favorable position.

“In this case, my client politely declined to answer any investigative questions and simply provided his license and registration,” Tiftickjian says. “The officer had no admissions to rely on, so the evidence was much thinner.”

That case ended up being dismissed for lack of proof beyond a reasonable doubt.

“It’s a powerful reminder that silence isn’t defiance, it’s protection,” Tiftickjian says. “Knowing your rights in those early moments can completely change the trajectory of a DUI case.”

Breathalyzers & Blood Tests

Another thing to pay close attention to is whether an officer is directing you out of the vehicle or is simply asking you to consent to getting out. If you are directed to get out of the car, you should comply, says Joseph Maher, a criminal defense attorney at Maher & Maher in Colorado Springs.

“Understand that once you are directed to get out of your vehicle, a DUI investigation is now likely occurring in the officer’s mind,” Maher says. “In a routine traffic stop, an officer will not direct you out of the vehicle. So if you are directed to get out of your vehicle, you will know that the officer believes she has the requisite level of suspicion allowing her to require you to get out of the vehicle.”

If an officer establishes probable cause, drivers are required under Colorado law to cooperate with chemical testing, which could include a Breathalyzer and/or blood tests, Tiftickjan says. 

“Once you are arrested, refusing the breath or blood test will trigger a one-year driver’s license revocation for a first refusal, and longer for subsequent ones. That refusal can also be used against you in court,” he says. “However, agreeing to a test that produces a high alcohol result or a positive THC finding also creates powerful evidence for the prosecution.”

Drivers also should know that, in Colorado, police can request a search warrant for a blood draw if you refuse the chemical test. “In this scenario, you will face the driver’s license consequences for a refusal, and still be subject to providing a blood sample, which can show alcohol and/or drug impairment,” Tiftickjian says.

While completing chemical tests, it’s again important to offer only the necessary information. 

“It’s often a time when damaging statements can be made to the police officer,” Maher says. “It is best to remain silent during the chemical testing process, but for the questions you are required to answer to comply with testing only.”

Field sobriety tests, however, are voluntary.

“Drivers are not required to perform them, and doing so can often provide officers with evidence of impairment that may later be challenged in court,” Tiftickjian says.

When Is a Lawyer Necessary?

Once you are released, Tiftickjian says you should contact a lawyer. A strong defense attorney can get to work immediately to help protect your rights.

“Every DUI case is unique, and a strong defense depends on identifying errors in procedure, gaps in proof, and scientific inconsistencies,” Tiftickjian says. “Sometimes the best defense is to mitigate the situation instead of entering a not guilty plea and challenging the evidence at trial.”