Miranda Rights and DUI Arrests in California

The famous "Miranda rights" must only be read in a DUI case when:

  1. You have been arrested for driving under the influence ("DUI")and
  2. You are being interrogated.

Television shows and movies have created some confusion about when Miranda rights ("you have the right to remain silent") must be read. Contrary to popular perception, police are NOT obligated to read you Miranda rights when:

  • they are still conducting a DUI investigation (that is, after you are pulled over, but before you are arrested), or
  • they have placed you in custody, but are not interrogating you.

But if you were in custody (under arrest) and the police questioned you without first advising you of your Miranda rights, the failure to read you such rights can be a valid California DUI defense.

In such a case, your California DUI defense attorney can file a motion to suppress evidence to have any statements you made during that time excluded from evidence.

The following table summarizes the situations in which Miranda rights in a DUI case are and are not required:

Have I been arrested for DUI?

Is an officer interrogating me (i.e., asking questions designed to elicit incriminating responses)?

Miranda rights required













Status of DUI investigation/arrest

Miranda rights required?

Pulled over for DUI


Pre-arrest investigation for DUI


Arrested for DUI but no questioning by officers


Arrested for DUI and officers conducting interrogation


Below, our California DUI defense attorneys answer the following frequently asked questions about Miranda rights in DUI cases:

1. What are Miranda rights?

"Miranda" rights stem from the protection against self-incrimination in criminal cases, including DUI cases, contained in the Fifth Amendment to the United States Constitution.1

police arresting man and reading him his miranda rights
"Miranda" rights stem from the protection against self-incrimination in criminal cases

The name “Miranda” comes from a U.S. Supreme Court case, Miranda v. Arizona. The Court in Miranda held that you must be advised of your Fifth Amendment right to remain free from self-incrimination whenever the following two conditions are met:

  1. You are under arrest, and
  2. The police conduct a “custodial” (post-arrest) interrogation.2

But if either of these two conditions is not met, there is no requirement for the officer to advise you of your Miranda rights in your DUI case.

A typical Miranda warning, in DUI or other criminal cases, reads as follows:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to talk to a lawyer and have him or her present with you while you are being questioned.
  4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
  5. You can decide at any time to exercise these rights and not answer any questions or make any statements.3

2. Do police need to read me my Miranda rights if I am pulled over for suspected DUI?

Police do not need to read you your Miranda rights when you are first pulled over for DUI.

When an officer suspects you of driving under the influence, he or she will conduct a DUI investigation.  A DUI investigation is what occurs after you have been pulled over, but before an arrest, and may involve:

Because you will have not yet been arrested, questions during DUI investigations are generally not considered to be “custodial interrogations.”  Therefore, the officer generally does not have to read you the Miranda warning. 

young girl pulled over by police in her convertible
Police do not need to read you your Miranda rights when you are first pulled over for DUI.

But note that, even though the officer will not have read you your Miranda rights, you do have the right to remain silent during the DUI investigation--as you do at all times when talking to the police.

3. Do police need to read me my Miranda rights if I am arrested for DUI?

Even once you are arrested for DUI, the police do not necessarily have to read you your Miranda rights.

After you are arrested, the Miranda warning is required only once an officer begins "custodial interrogation."

A "custodial interrogation" is when an officer asks you questions likely to produce incriminating answers.

Examples of such questions after a California DUI arrest include:

  • Were you drinking?
  • How much did you drink?
  • Did you take any medications or other drugs?

As San Bernardino DUI defense attorney Michael Scaffidi4 explains:

“The little known fact is that you do not have to answer questions during a DUI investigation--and it is often better for you if you politely refuse to do so.”

To reiterate: Miranda warnings are required only when both of the following conditions are met: 

  1. You have been placed under arrest for California DUI; and
  2. An officer begins to conduct a "custodial interrogation."

4. What happens when my Miranda rights kick in after my DUI arrest?

Once you are in custody--that is, you have been arrested for DUI--, the police must read you the Miranda warning before asking you questions designed to elicit incriminating answers.

Just as importantly, they must comply with your wishes about being questioned, which is what your Miranda rights are all about. They must not question you – or must cease questioning you -- if:

  • You assert your right to remain silent, or
  • You assert your right to an attorney.5

Even if you consent to questioning, the police must be able to show that your consent was:

  • knowing,
  • intelligent, and
  • voluntary.6

This is usually done by having you sign a written waiver.

police officer writing down notes
Any statements you make after waiving your Miranda rights following a California DUI arrest will be admissible as evidence against you

Any statements you make after waiving your Miranda rights following a California DUI arrest will be admissible as evidence against you. But you can assert your Miranda rights at any time, even if you have already answered some of an officer's questions.

Example: Lorraine is pulled over for erratic driving. After a brief investigation, the officer arrests her on suspicion of California DUI with a BAC of 0.08 or above

After arresting her, the officer reads her her Miranda rights and begins asking her questions about her drinking habits. Lorraine answers a few questions but then begins to wonder whether she should get a lawyer.

Lorraine is entitled to assert her Miranda rights at this point and refuse to answer any further questions until she has hired a DUI defense attorney.

We can't emphasize this point enough: you may assert your right to remain silent at any time, even if you have already agreed to answer questions.7

5. What happens if my Miranda rights were violated in my DUI case?

If your Miranda rights were violated in any way in your DUI case, your California DUI defense attorney will file a motion to suppress evidence. If this motion is successful, some of your statements to police may be excluded from evidence.

This does not mean that your entire driving under the influence case will be thrown out. It doesn't necessarily even mean that everything you said to the police will be excluded.

Only those statements you made during the period when you should have been--but weren't-- advised of your Miranda rights will be suppressed.

The prosecution will still be allowed to admit into evidence your statements – if any – that were made:

  • during a DUI investigation,
  • of your own accord (i.e., not in response to an interrogation), or
  • after you knowingly and voluntarily waived your Miranda rights.

And finally, keep in mind that even if your statements are excluded due to a Miranda violation in your DUI case, the prosecutor can still present evidence of:

  • Your driving pattern,
  • Observable signs of physical and mental impairment (flushed face, smell of alcohol, etc.),
  • The presence of alcohol in the car,
  • Your performance on field sobriety tests, and
  • Your blood alcohol concentration (BAC) as measured by a DUI blood or breath test.

Example: Scott is pulled over on suspicion of DUI by Bruce, a California Highway Patrol officer. After administering a field sobriety test and a PAS breath test, Bruce decides to put Scott under arrest on suspicion of DUI with a BAC of 0.08 or above.

Bruce does not read Scott his Miranda rights. But while he is driving him to a police station in his patrol car, he asks him questions about what he has had to drink that night, and Scott answers these questions honestly.

At the police station, another officer asks Bruce if he "Mirandized" Scott, and Bruce admits that he didn't. This new officer then reads Scott his Miranda rights.

Scott and his DUI defense attorney should be able to file a successful motion to have the statements Scott made in the patrol car suppressed since they were obtained in violation of Miranda.

However, any statements Scott made before being arrested and after being read his Miranda rights are still admissible. And so are the results of his FSTs and PAS breath test.

And if you choose to remain silent, before or after being arrested for California DUI, that may not be used against you. That choice is at the heart of Miranda rights for California DUI and other criminal defendants.

Call us for help...

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For more information about Miranda rights in California DUI cases, or to discuss your case confidentially with one of our criminal defense attorneys, please don't hesitate to contact us at Shouse Law Group.

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.

Additionally, our Las Vegas Nevada DUI defense attorneys represent clients accused of violating Nevada's DUI laws. 

Legal References:

  1. United States Constitution, Amendment V. (“No person shall . . . be compelled in any criminal case to be a witness against himself . . . .”)
  2. Miranda v. Arizona (1966) 384 U.S. 436, 444 [applies to California DUI cases].  (“…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.”)
  3. Same (“Prior to any questioning [including after a DUI arrest], 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.”).
  4. 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.  
  5. Miranda, endnote 2 above, at 444 [applies to California DUI cases]. (“If [the DUI defendant] 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.”)
  6. Same. (“The [driving under the influence] defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”)
  7. Same. (“The mere fact that [the defendant in a DUI case] 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.”)

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