In a California DUI arrest, must the police read me my Miranda Rights?

Despite common misperceptions...due in large part to what we see in television shows and movies...there is no blanket legal requirement for police officers to read Miranda rights during a California DUI arrest.

These rights, which in essence advise you of your "right to remain silent" must only be given if you are (1) in police custody, and (2) being interrogated.

If either of these conditions isn't satisfied, the fact that you weren't read your Miranda rights will not serve as a California DUI defense.

However, if you were in custody and the police interrogated you without first advising you of these rights, your California DUI defense attorney will likely have any statements made during that time excluded from evidence.

What are Miranda Rights in the DUI context?

The name "Miranda" stems from a U.S. Supreme Court case Miranda v. Arizona. Although this case didn't set forth an exact wording for these rights, it established the fact that you must be advised of your Fifth Amendment right to remain free from self-incrimination if the following two conditions are met: (1) you are under arrest, and (2) the officer conducts a "custodial interrogation".¹

Miranda rights typically consist of the following statements: "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."

If the above two conditions (that you have been arrested and are being interrogated) aren't met, then there is no requirement for the officer to advise you of these rights.

However, if these conditions have been satisfied... and the officer asks you questions without first advising you of your Miranda rights...your California DUI defense attorney should be able to have your answers suppressed from evidence. This is critical when it comes to fighting a California DUI.

But it must be noted that if the officer did advise you of your rights, any statements you subsequently made will be admissible as evidence against you.

The difference between a California DUI "investigation" and a California DUI "interrogation"

A typical California DUI investigation is considered just that...an investigation. So if the officer legally pulls you over and begins asking you questions such as

• were you drinking?



• what were you drinking?



• how much did you drink? And



• what time were you drinking?

the officer is well within his/her authority to do. But as Pomona DUI defense attorney John Murray explains², "The little known fact is that you do not have to answer these DUI questions...and it is often better for you if you politely refuse to do so."

The reason that the officer is entitled to question you at this point is because up until you are actually arrested for Vehicle Code 23152a driving under the influence, the officer is simply gathering information to determine whether an arrest is appropriate. This is what's known as the "investigation".

An investigation takes place when legally, though not practically speaking, you are free to leave. And although you are not allowed to contact an attorney at this stage in the investigation, you can politely inform the officer that you have been advised to remain silent.

Once you are handcuffed...and are therefore no longer permitted to leave...your Miranda rights may kick in. That is, if the officer asks you more questions that are designed to elicit incriminating responses about your DUI. This is what's known as a "custodial interrogation".

During a custodial interrogation, you have the right to remain silent. You also have the right to consult with an attorney before answering any questions. If you are advised of your Miranda rights...and choose to speak with the DUI officer...any statements you make can be used against you.

If the DUI officer fails to advise you of your Miranda rights...and asks you questions that are designed to elicit incriminating responses...your California 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 interrogate you. This means that a casual conversation (even if contrived) may not rise to the level of this Fifth Amendment protection.

It is also important to note that if you choose to remain silent, your silence cannot be used against you.

If the DUI cops violate my Miranda Rights, does all the evidence get thrown out of court?

Unfortunately, no. Miranda rights only apply to testimonial (that is, verbal) evidence. This means that in a California DUI investigation, evidence of your

• driving pattern,



• physical appearance (examples include slurred speech, red/watery eyes, and a lack of balance),



• 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 additional questions or would like to discuss your case in confidence with one of our California DUI defense attorneys, we invite you to contact us. We have local DUI law offices in Los Angeles, the San Francisco Bay area, San Jose, Ventura, Orange County, Riverside, San Bernardino, and several surrounding areas.

You may also find helpful information in our related articles on Vehicle Code 23152a Driving Under the Influence, and Fighting a California DUI.

Legal References:

¹Miranda v. Arizona, (1966) 384 U.S. 436, 444. ("...the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.")

²Pomona DUI defense attorney John Murray is a successful trial lawyer and TV legal commentator who defends those accused of DUI primarily in the San Gabriel Valley and Inland Empire areas. Contact us to learn more about his impeccable resume.

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