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I have been told by clients on several occasions that they were arrested by the police for DUI after they were stopped, performed Field Sobriety Tests and/or gave blood, but never given their “Miranda” warnings; therefore, they felt like their arrest should be thrown out. This is a tricky area, and has been discussed at length by courts, lawyers and police ever since the U.S. Supreme Court case, Miranda v. Arizona, was published in 1966. The Miranda case states that, under the Fifth Amendment of the U.S. Constitution, you must be advised of your right to remain silent only if the following two conditions are met: (1) you are under arrest, and(2) the officer conducts a “custodial interrogation.”
The Miranda warning, although it doesn’t require these exact words, typically consists of something like the following: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak with an attorney. If you cannot afford one, one will be appointed to you at no cost.”
Until these two conditions are met (that you have been arrested and are being interrogated), then the officer is not required to advise you of these rights.
The officer is under no obligation to give Miranda warnings if he is simply conducting an investigation; thus, it is important to know when an “investigation” has turned into an “arrest.” The courts have made the distinction based upon when a person has a reasonable belief that they are no longer free to leave the presence of the police. Though you have clearly been arrested when you have been placed in handcuffs, sometimes it is not that clear.
The police cannot make a traffic stop for no reason, but they can pull someone over for any number of reasons, some of which are very flimsy. These can include throwing a cigarette out of the window, not having a seat belt on, having a broken taillight, and many others. These are called “pretext” stops and they are perfectly legal. Once the officer pulls you over, even on a pretext stop, he can ask questions such as:
Have you been you drinking?
What were you drinking?
How much did you drink? And
What time were you drinking?
The reason that the officer is entitled to question you at this point is because, up until you are actually arrested for DUI, the officer is simply gathering information to determine whether an arrest is appropriate. This is what’s known as the “investigation.” An investigation is neither an interrogation nor an arrest, so no Miranda warnings are needed. But, the little known fact is that you do NOT have to answer these DUI questions, and it is rarely in your best interest to do so. Any information you give the officer must be truthful and, unless you can HONESTLY tell him/her that you have not been drinking at all, it is usually best for you if you politely refuse to answer these questions. Although you are not allowed to contact an attorney at this stage in the investigation, you can politely inform the officer that you have chosen to remain silent.
If you are arrested and handcuffed, and are therefore no longer permitted to leave, your Miranda rights MAY kick in. That is, the officer must give you the warnings in order to ask you more questions that are designed to elicit incriminating responses about your DUI. This is what’s known as a “custodial interrogation.” If you are advised of your Miranda rights and you choose to speak with the DUI officer, any statements you make can be used against you. During a custodial interrogation, you have the absolute right to remain silent and to consult with an attorney. If you are advised of your Miranda rights and you choose to speak with the DUI officer, any statements you make can be used against you.
If the DUI officer arrests you and fails to advise you of your Miranda rights and asks you questions that are INTENDED to elicit incriminating responses, your DUI defense attorney will most likely prevail on a motion to exclude those responses from evidence. If, however, the DUI officer fails to advise you of your Miranda rights and engages you in a CASUAL conversation, any incriminating statements that you make will likely be used against you. And so it bears repeating: in order to receive Miranda protection, the officer must arrest you and intentionally interrogate you. It is also important to note that if you choose to remain silent, your silence cannot be used against you.
Also, Miranda rights only apply to testimonial (that is, verbal) evidence. This means that in a DUI investigation, evidence of your driving pattern, physical appearance (slurred speech, red/watery eyes, lack of balance, etc.), performance on field sobriety tests, and blood alcohol concentration (BAC) as reported by a chemical blood or breath test, are all admissible regardless of whether the officer informs you of your Miranda rights. Only actual, verbal statements are protected by the Miranda advisement.
If you have been arrested for DUI in Gallatin, TN or Sumner County, or would like to discuss your case in confidence with me, click here to request a consultation or contact me about DUI legal representation.
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