Police are generally only required to read Miranda rights at a roadside DUI investigation if two conditions are met:
- the motorist has been placed under arrest, and
- the officer is interrogating the motorist (asking incriminating questions).
“Miranda rights,” also known as a “Miranda warning,” are warnings the police must give before they question someone after an arrest. These warnings typically begin with the statement, “You have the right to remain silent.”
A Miranda warning is not always required after a DUI arrest
Contrary to popular perception, police do not necessarily have to read a Miranda warning right after an arrest. A Miranda warning must only be given if a suspect has been arrested AND he or she is being interrogated.
This means that in a DUI case police do NOT have to read Miranda rights when:
- They are still conducting a DUI investigation (that is after a driver is pulled over, but before the driver is under arrest), or
- They have arrested a driver but have not yet begun interrogating him or her.
The following flowchart summarizes when a Miranda warning must be given in a DUI case:
Remedy for a Miranda rights violation
Defendants who are not read a Miranda warning as or when required have a remedy. They or their DUI defense lawyer can file a “motion to suppress evidence.”
If the judge grants the motion, any incriminating statements the driver made after the warning should have been given will be inadmissible.
This can often significantly weaken the prosecution’s case. This, in turn, can lead to a DUI plea bargain or even a dismissal of the charges.
To help you better understand Miranda warnings in DUI cases, our California DUI lawyers discuss below:
- 1. What are Miranda rights?
- 2. What words are required in a Miranda warning?
- 3. Do the police need to read rights during a DUI traffic stop and investigation?
- 4. Does the driver have the right to remain silent during a DUI traffic stop?
- 5. Do police need to give a Miranda warning after a DUI arrest?
- 6. How does someone invoke Miranda rights?
- 7. How can Miranda be waived?
- 8. Can someone change his or her mind after waiving his/her rights?
- 9. Do all Miranda rights have to be exercised at once?
- 10. What happens if Miranda was violated in a DUI case?
Miranda rights take their name from the case “Miranda v. Arizona.” 1 They are warnings the police must read to people they arrest before they can interrogate them. These rights arise from the protection against self-incrimination embodied in the Fifth Amendment to the United States Constitution. 2 They apply in all criminal cases, including cases of driving under the influence (“DUI”).3
The Court in Miranda held that an arrestee must be advised of his or her constitutional rights whenever the following two conditions are met:
- The suspect is in custody and not free to leave,4 and
- The police wish to conduct a “custodial” (post-arrest) interrogation.5
If the suspect is free to leave or is not being interrogated, the police do not have to give a warning.
Note that in some jurisdictions (for instance, the Ninth Circuit, which covers California), a DUI suspect may be “in custody” without being under arrest. The test is whether a reasonable person in the same situation would have believed he/she could freely leave the interrogation.6
No specific words are required in order for a Miranda warning to be valid.7 Any words may be used as long as the driver’s rights are clearly stated.8 A typical warning in a DUI or other criminal case reads as follows:
- You have the right to remain silent.
- Anything you say may be used against you in court.
- You have the right to talk to a lawyer and have him or her present with you while you are being questioned.
- If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.9
Afterward, the police will usually ask whether the driver wishes to waive Miranda rights and speak to them.
A driver does not have to do so. A driver can invoke any of his or her rights at right at any time later—even if he or she has already started talking to the police.10
Police do not need to read Miranda rights during a “DUI investigation.” A DUI investigation consists of everything that occurs after a driver is stopped but before any arrest is made. This can happen after a driver is pulled over or at a DUI sobriety checkpoint.
At this point, a driver is not “in custody.” Therefore, the officer does not need to give a Miranda warning before asking questions.
What happens during a DUI investigation?
During a DUI investigation, an officer may do one or more of the following:
- Ask for license and registration (and, in some states, proof of insurance);
- Ask the driver to perform one or more “field sobriety tests” (“FSTs”);
- Ask the driver to take a preliminary alcohol screening (“PAS”) breath test;
- Ask the driver to submit to a cheek swab for DUI of marijuana or driving under the influence of drugs (in some jurisdictions); and/or
- Question the driver to see if he or she displays signs of intoxication such as:
- Slurred speech,
- Red, watery eyes,
- Dilated or “pinprick” pupils, or
Typical questions an officer may ask include:
- Where did you just come from?
- Were you drinking?
- Have you taken any medications or other drugs today/tonight?
A driver always has the right to remain silent when talking to the police. The driver does not need to be read a Miranda warning in order to exercise this right.
This means that a driver does not have to answer the officer’s questions during a DUI traffic stop. (The only thing a driver MUST do during a DUI investigation is to show the officer a license and registration and, in some states, proof of insurance).
“The little known fact is that a driver does not have to answer questions during a DUI investigation. And it is often better for a driver to politely refuse to do so—particularly if the driver has been drinking.”
The police do not necessarily have to read a driver his or her Miranda rights after a DUI arrest. A warning is required only once an officer begins “custodial interrogation.”12
A “custodial interrogation” is one in which an officer asks questions likely to produce incriminating answers.
These questions will be similar to the ones officers often ask during a DUI investigation. For instance, officers may ask whether someone has consumed drugs or alcohol and, if so, how much.
As noted above, they can legally ask such questions without reading a Miranda warning during a DUI investigation.
But once a driver is in custody (for example, under arrest), a warning is required before they can ask these things.
No special words are required in order to invoke Miranda rights. But they must be stated clearly and affirmatively. For instance, someone might say, “I am invoking my right to remain silent” or “I want to speak to a lawyer.” Simply remaining silent is not enough. 13
If a driver remains silent without invoking his/her rights, the refusal to answer questions can be introduced as evidence of guilt.
But once a driver invokes the right to remain silent the choice cannot be used against him/her. That choice is at the heart of the Fifth Amendment’s protection against self-incrimination.
How to protect rights after a DUI arrest
We recommend that people who have been arrested for DUI take the following steps in order to preserve their rights:
- Affirmatively state that they are invoking their right to remain silent,
- Ask to speak to a lawyer (either their personal California DUI defense lawyer or a public defender) and
- Say nothing else to the police or anyone else.
After giving a Miranda warning, police will usually ask an arrestee if he or she understands each right. The officer will then ask if the suspect wishes to speak to them. This is known as a Miranda waiver.
Like the Miranda rights themselves, there are no specific words the police must use. Some officers will wait until they have finished reading the entire warning. In such a case the officer may say something like:
- Do you understand each of these rights I have explained to you?
- Having these rights in mind, do you wish to talk to us now?
Other officers may simply say, “Do you understand?” after each right is enumerated. Then at the end, they will ask if the driver wishes to speak to them.
At this point, the driver should affirmatively invoke his or her right to remain silent.
Miranda waivers may be express or implied
Unfortunately, there are many ways in which Miranda rights can be waived. Such waivers may be “express” or “implied.”
An express waiver of Miranda rights involves a statement. This usually occurs when a driver says “yes” when an officer asks if the driver wishes to talk after a warning.
The police will then usually ask the driver to sign a written waiver acknowledging that he/she is waiving rights. But it is not necessary and a refusal to sign an offered acknowledgment form does not mean that rights were not waived.14
A waiver can also be implied from a defendant’s behavior. This can include making a statement to the police–either before or after a Miranda warning is read.15 The statement will be considered an implied waiver of rights as long as it is “intelligent,” “knowing”,16 and “voluntary.”17
“Intelligent” and “knowing” do not mean the defendant has to be smart about the decision he or she makes. All that is required is that the person making a statement after receiving a Miranda warning understands that he/she does not have to make it.18
A statement is “voluntary” if it is freely made (that is, not coerced in any way).19
Coercion does not necessarily have to consist of a threat to violate a defendant’s rights. It can be anything that might improperly compel someone to make an admission when he/she would not otherwise make it.
- The police threaten to call the driver’s employer or family and tell them about the DUI if the driver does not confess to having used drugs;
- The police promise that the case will be dismissed if the driver confesses;
- The police deprive the driver of water for a long time and tell the driver he/she can have water after admitting to drinking alcohol; or
- The police represent to the defendant that if he’s innocent, he doesn’t need a lawyer.20
These and similar behaviors can give a driver a Miranda rights-based defense to DUI charges.
A person may invoke Miranda rights at any time—even if he or she previously waived them. The rights will apply on a going-forward basis.21
That is, any incriminating statements the driver makes after that point will be inadmissible. But any statements made before such rights were invoked may be admissible depending on whether and when a warning was given.
This means that even if a suspect has waived Miranda rights and started talking, he/she can change his mind and invoke them– even if he/she has already answered some of an officer’s questions. 22
We can’t emphasize this point enough: a suspect may assert his or her right to remain silent at any time, even if that person has already agreed to answer questions.
Example: Lorraine is pulled over for erratic driving. After a brief investigation, the officer arrests her on suspicion of California Vehicle Code 23152(a), driving under the influence.
The arresting officer reads Lorraine a Miranda warning and begins asking her questions about her drinking. Lorraine answers a few but then begins to wonder whether she should get a lawyer.
Lorraine is entitled to assert her rights at this point and refuse to answer any further questions. Or she can ask to speak to a lawyer. Once someone asks to speak to an attorney, the police must stop asking questions until the attorney arrives.23
Miranda rights do not need to be exercised all at once. Someone can exercise his or her right to remain silent and still retain the right to ask for a lawyer later.
But all rights must be exercised affirmatively. That is, the person must clearly communicate to the police that he or she is invoking such right(s).
Note also that asking for a lawyer is a way of invoking the right to remain silent. Once a driver asks for a lawyer the police must immediately cease questioning him or her.24
If Miranda rights were violated in any way, a DUI defense attorney can file a motion to suppress the evidence.25 If the motion is granted, the judge will exclude from evidence all statements the driver made after such rights were violated.
Ways in which Miranda rights might be violated include:
- The police failed to give any warning at all,
- The police did not read a suspect his/her rights before beginning custodial interrogation,
- The police continued questioning a driver after he/she invoked his/her right to remain silent,
- The police continued questioning someone after he/she requested a lawyer, or
- The police threatened or coerced the driver in order to induce him/her to waive rights.
Not all statements must be thrown out
A Miranda violation does not necessarily mean that an entire driving under the influence case will be thrown out. It doesn’t even always mean that everything the driver said to the police will be excluded.
Only those statements a driver made during the period when his or her rights were violated will be suppressed.
The prosecution will still be allowed to admit into evidence any statements made:
- During a DUI investigation,
- Of the driver’s own accord (for example, not in response to an interrogation), or
- After the driver knowingly and voluntarily waived Miranda rights.
Other evidence of drunk driving can still be introduced
Finally, drivers should keep in mind that statements are not the only evidence of driving under the influence. Even when there is a Miranda violation, the prosecutor can still present other evidence of impaired driving. Such evidence can include:
- Any traffic violations the driver committed,
- Observable signs of physical and mental impairment (such as flushed face, the smell of alcohol, etc.),
- The presence of alcohol and/or drugs or drug paraphernalia in the car,
- The driver’s performance on field sobriety tests,
- The driver’s blood alcohol concentration (BAC) as measured by a DUI blood test or DUI breath test,
- Traffic cam video footage and/or still photography,
- Police video of the encounter (in jurisdictions that use this), and
- Statements by other witnesses, if any.
Example: Scott is pulled over by a California Highway Patrol officer for weaving between lanes. The officer administers field sobriety tests and a PAS breath test. He then places Scott under arrest for California Vehicle Code 23152(b), driving with a BAC of 0.08% or higher.
The officer does not read Scott his Miranda rights. But while he is taking Scott to the police station, he asks Scott how much he has had to drink that night. Scott admits that he had several gin and tonics. At the station, another officer reads Scott his rights and begins to question him “officially.”
Scott’s California DUI defense attorney should be able to get the statements Scott made in the patrol car suppressed. Scott was clearly in custody so he needed to be “Mirandized” before being questioned.
But if Scott said anything during the DUI investigation, those statements are still admissible. And so are the results of Scott’s FSTs and PAS breath test.
For further help…
If you were charged with DUI, we invite you to contact us for a free consultation. Our California DUI attorneys can help you determine the best California DUI defenses in your case including, if applicable, a violation of your Miranda rights.
Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
We also have offices in Las Vegas and Reno to help people with Nevada DUI defense. You may also wish to review our blog entry, “Will my Nevada DUI case get dismissed if the police did not read me my Miranda rights?”
- Miranda v. Arizona (1966) 384 U.S. 436. (“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.”). CRS 16-3-406. House Bill 23-1155.
- United States Constitution, Amendment V. (“No person shall . . . be compelled in any criminal case to be a witness against himself . . . .”)
- Per the U.S. Supreme Court, this requirement is psychological as much as it is physical. Miranda, endnote 1.
- Miranda, endnote 1. (“…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.”)
- United States v. Kim (9th Cir. 2002) 292 F.3d 969 (“ Whether or not [the police] intended to surround Kim to make her feel that she could not leave the store, the position of the officers, the fact that they locked Kim’s husband out of their store, their restriction of her communication with her son, and their orders as to what language she should speak and when and where she could sit, combined with the length and nature of the questioning, would have made a reasonable person believe that she could not have just walked away. Under these circumstances, Kim would have reasonably felt compelled to stay in the store and answer the officers’ inquiries for as long as they continued to question her—which is precisely what she did.”).
- Florida v. Powell (2010) 559 US 50, 130 S.Ct. 1195, 1204]. See also People v. Cruz (2008) 44 Cal.4th 636, 667 (“A valid waiver need not be of predetermined form”); People v. Nitschmann (1995) 35 Cal.App.4th 677, 682 (“A reviewing court need not examine the Miranda warnings as if it were construing a will or defining the terms of an easement.”)
- Florida v. Powell, endnote 7.
- Miranda, endnote 1.
- Berghuis v. Thompkins, 560 U.S. 370 (2010).
- San Bernardino DUI defense attorney Michael Scaffidi uses his experience as a former Ontario police officer to help defend those accused of DUI throughout San Bernardino and Riverside Counties, including those whose Miranda rights have been violated.
- Miranda, endnote 1.
- Berghuis v. Thompkins, 560 U.S. 370 (2010).
- Miranda, endnote 1. (“No amount of circumstantial evidence that a person may have been aware of his rights will suffice.”); People v. Bennett (1976) 58 Cal.App.3d 230, 239 (“The prosecution was required to prove that appellant was in fact aware of his rights”); Brady v.United States (1970) 397 U.S. 749, 748 (“Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.”).
- Berghuis v. Thompkins (2010) 560 U.S. 370, 130 S.Ct. 2250 (A waiver “must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.”)
- People v.Clark (1993) 5 Cal.4th 950, 985 (“All that is required is that the defendant comprehend all of the information the police are required to convey.”)
- See Berghuis, endnote 17 (a waiver “must be voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception”).
- Same. See also People v. Russo (1983) 148 Cal.App.3d 1172, 1177. (“[S]uch statements by interrogating officers cannot be permitted, as they may induce an unsophisticated suspect to give up an important constitutional right based on the faulty premise that only the guilty need counsel. The innocent person has at least as great a need, and most certainly an equal right, to counsel as the guilty. Such statements patently violate the spirit of Miranda, as well as common notions of fairness. They have no valid place at any stage of criminal proceedings.”).
- Berghuis, endnote 17.
- See, e.g., People v. Clark, endnote 18 (“The detectives repeatedly made clear to [the suspect] that . . . he could stop the interview at any time by merely saying he wanted an attorney.”)
- See, e.g., California Penal Code 1538.5 PC, motion to suppress evidence.