“I WASN’T READ MY RIGHTS!” (MIRANDA)
In DUI cases, one of the most frequently asked questions is, “The police didn’t read me my rights. What can I do about it?”
What are “your rights” and when and how must police advise you of them? Please immediately call the Law Offices of Mark Blair for a free, confidential and informative consultation! Protect your rights!
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Police cannot question a person under arrest with the goal of eliciting incriminating information from the person without first advising the person that he/she has the right to remain silent and that anything that the person says may be used against the person in court. This well known statement is paraphrased from the now famous Miranda case.
But does a driver in a DUI stop/arrest have such rights and if so, when must police provide the Miranda warning?
DUI drivers do have Miranda rights. Police must advise a driver of his/her Miranda rights upon (1) arrest or the functional equivalent AND (2) police initiating questioning of the driver about the circumstances of the DUI following an actual arrest or the functional equivalent of an arrest.
The most hotly contested portion of the DUI investigation involving Miranda warnings is the police investigation at the site of the DUI stop. The typical citizen driver has long been taught by his/her parents to respect authority and answer truthfully any questions asked by police. Moreover, police are often trained that the best moment to obtain the most incriminating information against a person is before the police arrest the person. Police may also, subtly or not, hint that if the driver elects not to do as police “request,” the driver will be arrested. Thus, the driver, with years of socialization to respect and obey police, as well as the prospect of arrest, complies and answers all the questions police ask and does all the tests that police “request.”
Police know that once a person is arrested, the person becomes more uncooperative with them. So, police use all means at their disposal to obtain as much damaging information against a driver before arresting the driver. Police act friendly and sympathetic to the driver’s plight. They will imply that all a driver has to do is answer a couple questions and take these “simple” field sobriety tests that police are quick to say that they believe that the driver will easily pass. During the tests, police encourage the drivers and even go as far to complement them. Then boom. Without warning, once the driver completes all the tests, the officer announces that the driver has failed the tests. But once again, playing the game, the officer insinuates that all the driver has to do is to blow into this little device (“PAS” instrument, preliminary alcohol screening device) to satisfy the officer’s concern. The driver, not wanting to be arrested, complies. Again, suddenly and without any warning, police arrest the driver. Typically, they don’t even disclose the “PAS” test result.
So, this roadside stop is fertile ground for police to obtain all sorts of incriminating information against the driver.
The question then becomes, is the police and driver interaction by the side of the road an “arrest” or a functional equivalent of the arrest?
The answer is that it depends on the facts of each case. Courts do not offer Miranda protections for “detentions,” situations where a person is not “free to go” and where a person is not (yet) under arrest. Instead, DUI attorneys must show that the person was under arrest or a functional equivalent to have the statements suppressed.
So, even if the roadside contact by police with the driver is not an arrest or the functional equivalent of an arrest, is the driver without any hope? Absolutely not. The DUI attorney must find other ways to suppress (eliminate) the driver’s statements, police observations of the driver’s “poor” performance on the field sobriety tests and any “PAS” test results.
DUI attorneys have such a weapon: motions to suppress the evidence. If the basis for the initial stop (when police first begin their DUI investigation) and/or the basis for the arrest do not have lawful, constitutional reasons, the evidence must be suppressed (cannot be used).
Any person charged with a DUI ought to consult with a qualified and experienced attorney who will review the facts of the case to determine how any and all statements by the driver, the police observations of the driver during the field sobriety tests, and any and all chemical test results can be suppressed.