It is a common misconception that police must read Miranda rights every time they make an arrest. In DUI cases, police are generally only required to read your rights if two conditions are met:
- you have been placed under arrest, and
- the officer is interrogating you (asking incriminating questions).
This means that police do NOT have to read your rights when:
- They are still conducting a DUI investigation (that is after you are pulled over, but before you are under arrest), or
- They have arrested you but have not yet begun interrogating you.
The following flowchart summarizes when a Miranda warning must be given in a DUI case:
If you are not read a required Miranda warning, we can file a “motion to suppress evidence.” If the judge grants it, any incriminating statements you made after the warning should have been given will be inadmissible.
This can often significantly weaken the prosecution’s case. This can lead to a plea bargain or even a dismissal of your charges.
To help you better understand Miranda warnings in DUI cases, our California DUI lawyers discuss below:
- 1. What are Miranda rights?
- 2. Required Wording
- 3. DUI Traffic Stops
- 4. Staying Silent
- 5. After the DUI Arrest
- 6. Invoking Your Rights
- 7. Waiving Your Rights
- 8. Invoking Miranda After Waiving It
- 9. Asking for an Attorney
- 10. Miranda Violations
1. What are Miranda rights?
These rights take their name from the U.S. Supreme Court case “Miranda v. Arizona.” 1 They are warnings the police must read to you before they can interrogate you while you are in custody.
These rights arise from the Fifth Amendment to the United States Constitution, which protects you from self-incrimination.2 They apply in all criminal cases, including driving under the influence (“DUI”).3
The Supreme Court held that you must be advised of your constitutional rights whenever the following two conditions are met:
- You are in custody and not free to leave,4 and
- The police wish to conduct a “custodial” (post-arrest) interrogation.5
If you are free to leave or are not being interrogated, the police do not have to give a warning.
Note that in some jurisdictions like 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 they could freely leave the interrogation.6
2. Required Wording
No specific words are required in order for a Miranda warning to be valid.7 Any words may be used as long as your 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 you wish to waive your rights and speak to them.
You do not have to do so. You can also invoke any of your rights at any time later on—even if you have already started talking to the police.10
3. DUI Traffic Stops
Police do not need to read Miranda rights during a “DUI investigation.” A DUI investigation consists of everything that occurs after you are stopped but before any arrest is made.
During an investigation, you are not “in custody.” Therefore, the officer does not need to read you your rights 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 you to perform one or more “field sobriety tests” (“FSTs”);
- Ask you to take a preliminary alcohol screening (“PAS”) breath test;
- Ask you to submit to a cheek swab for DUI of marijuana or driving under the influence of drugs (in some jurisdictions); and/or
- Question you to see if you display signs of intoxication such as:
- Slurred speech,
- Red, watery eyes,
- Dilated or “pinprick” pupils, or
- Confusion.
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?
4. Staying Silent
You always have the right to remain silent when talking to the police. You do not need to be read a Miranda warning in order to exercise this right.
This means that you do not have to answer the officer’s questions during a DUI traffic stop. (The only thing you MUST do during a DUI investigation is to show the officer your license and registration and, in some states, proof of insurance).
San Bernardino DUI defense attorney Michael Scaffidi11 explains:
“The little-known fact is that you do not have to answer questions during a DUI investigation. It is often better for you to politely refuse to do so—particularly if you have been drinking.”
5. After the DUI Arrest
The police do not necessarily have to read you your 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 you have consumed drugs or alcohol and, if so, how much.
As noted above, they can legally ask such questions without reading your rights during a DUI investigation. However, once you are in custody (for example, under arrest), a warning is required before they can ask these things.
6. Invoking Your Rights
No special words are required to invoke your Miranda rights. However, you must state it clearly and affirmatively. For instance, you 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 you remain silent without invoking your rights, the refusal to answer questions can be introduced as evidence of guilt. Though once you invoke the right to remain silent, that choice cannot be used against you.
How to Protect Your Rights After a DUI arrest
If you have been arrested for DUI, we recommend that you take the following steps in order to preserve your rights:
- Affirmatively state that you are invoking your right to remain silent,
- Ask to speak to a lawyer (either your personal California DUI defense lawyer or a public defender) and
- Say nothing else to the police or anyone else.
7. Waiving Your Rights
After reading you your rights, police will usually ask you if you understand each right. The officer will then ask if you wish 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 you wish to speak to them.
At this point, you should affirmatively invoke your right to remain silent.
Miranda Waivers May be “Express”
An express waiver of Miranda rights involves a statement. This usually occurs when you say “yes” when an officer asks if you wish to talk after a warning.
The police will then usually ask you to sign a written waiver acknowledging that you are waiving rights. However, a written waiver is not necessary: Your refusal to sign the form does not automatically mean you invoked your rights.14
Miranda Waivers May be “Implied”
A waiver can also be implied from your 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” means you understand that you do not have to make a statement after receiving a Miranda warning.18 A statement is “voluntary” if it is freely made (that is, not coerced in any way).19
Coercion does not have to consist of a threat to violate your rights. It can be anything that might improperly compel you to make an admission when you would not otherwise make it.
For example, we can argue that you did not intelligently, knowingly, and voluntarily waive your rights if:
- The police threatened to call your employer or family and tell them about the DUI if you did not confess to having used drugs;
- The police promised that the case will be dismissed if you confess;
- The police deprived you of water for a long time and said you can have water after admitting to drinking alcohol; or
- The police said that if you are innocent, you do not need a lawyer.20
8. Invoking Miranda After Waiving It
Even if you waived your rights and started talking to police, you can change your mind and invoke your rights–even if you have already answered some of an officer’s questions. 21
Once you invoke your rights, any incriminating statements you make going forward will be inadmissible. However, any statements made before you invoked your rights may be admissible.22
Example: Lorraine is arrested for DUI. The arresting officer reads Lorraine her rights 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
9. Asking for An Attorney
You can invoke your right to have an attorney as soon as you are under custodial interrogation. Alternatively, you can exercise your right to remain silent and still retain the right to ask for a lawyer later.
Therefore, Miranda rights do not need to be exercised all at once. However, you must clearly communicate to the police that you are invoking such right(s).
Note also that asking for a lawyer is a way of invoking the right to remain silent. Once you ask for a lawyer, the police must immediately cease questioning you.24
10. Miranda Violations
If police violated your rights, we can ask the court to disregard anything you said after your rights were violated.25
Ways in which Miranda rights might be violated include:
- The police failed to give any warning at all,
- The police did not read you your rights before beginning custodial interrogation,
- The police continued questioning you after you invoked your right to remain silent,
- The police continued questioning you after you requested a lawyer, or
- The police threatened or coerced you in order to induce you to waive your 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 does not even always mean that everything you said to the police will be excluded.
Only those statements you made during the period when your rights were violated will be thrown out.
The prosecution will still be allowed to admit into evidence any statements made:
- During a DUI investigation,
- Without being prompted (for example, not in response to an interrogation), or
- After you knowingly and voluntarily gave up your rights.
Other Evidence of Drunk Driving Can Still Be Introduced
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. Examples include:
- Any traffic violations you committed,
- Signs of physical and mental impairment (such as flushed face, the smell of alcohol, etc.),
- Alcohol and/or drugs or drug paraphernalia in your car,
- Your performance on field sobriety tests,
- Your blood alcohol concentration (BAC) as measured by a blood test or breath test,
- Traffic cam video footage and/or still photography,
- Police video of the encounter, and
- Statements by other witnesses, if any.
Example: Scott is arrested for DUI after failing the field sobriety tests and a PAS breath test. The officer does not read Scott his rights. 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.
Scott’s 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. Though if Scott said anything during the DUI investigation, those statements are still admissible. The results of Scott’s FSTs and PAS breath test are admissible as well.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- The Applicability of Miranda Warnings to Non-Felony Offenses: Is the Proper Standard Custodial Interrogation or Severity of the Offense – University of Michigan Journal of Law Reform.
- Drunk Driving, Implied Consent, and Self-Incrimination – Journal of the American Academy of Psychiatry and the Law.
- Fifth Amendment–Videotaping Drunk Drivers: Limitations on Miranda’s Protections – Journal Criminal Law & Criminology.
- Expanding Miranda: The Duty of Police to Advise Motorists Arrested for Driving under the Influence of Their Right to an Independent Blood Alcohol Test – New England Journal on Criminal & Civil Confinement.
- The detrimental impact of alcohol intoxication on facets of Miranda comprehension – Law and Human Behavior.
- Miranda Warnings Not Required When Motorist Charged with Driving While Intoxicated Is Requested to Submit to Chemical Testing – St. John’s Law Review.
Legal References:
- 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 . . . .”)
- Same.
- 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 (2010) 560 U.S. 370.
- 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 (2010) 560 U.S. 370.
- Same.
- Same.
- 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.
- Same.
- Same.
- See, for example, 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, for example, California Penal Code 1538.5 PC, motion to suppress evidence. See, for example, People v. Cooper (Cal.App. 2019) .