Archive for September 7th, 2018

The Right to Remain Silent During a DUI Stop

Friday, September 7th, 2018

Few people know that they have a right not to say anything to an officer who has pulled them over on suspicion of driving under the influence. Sometimes a person knows that they don’t need to speak to the officer but do so anyways because they think that cooperation will help their cause. Sometimes a person just gets so nervous that they don’t even think about it and start answering the officer’s questions.

What kind of questions?

Some questions an officer might ask, and almost always do, include: “Where are you going?” “Where are you coming from?” “Have you had anything to drink?”

The driver is doing him or herself no favors if they answer with, “I’m going home from the bar and I’ve only had one or two drinks.” All the driver has done is given the police more reason to arrest them and given the prosecutor more evidence to convict them.

Maybe the driver wouldn’t have answered the officer’s questions had they been read their Miranda Rights. Why didn’t the officer read the driver their Miranda Rights before the officer started asking questions? When does the officer have to read the driver their Miranda Rights, if at all?

Before we get into when an officer must give Miranda Warnings to a DUI suspect, it makes sense to address why officers give Miranda Warnings in any case.

All statements given to law enforcement must be voluntarily given, even those given during a DUI stop. The United States Supreme Court in the landmark case of Arizona v. Miranda said that a statement cannot be voluntarily given if a person doesn’t know they have a right not to say anything under the 5th Amendment. Therefore, in order for a statement to be voluntarily given, a person must be made aware that they have a right to remain silent.

Whether it is a DUI stop of an arrest for murder, the Court held that an officer must read a person their Miranda Warnings before a “custodial interrogation.” This means after an arrest and before an interrogation.

When a person is stopped on suspicion of a DUI or even a traffic violation that leads to a DUI investigation, the person is not arrested even though they may be temporarily detained. And inevitably the officer is going to ask questions after stopping the person.

Now, the person has the right not to speak to the officers or answer their questions. But the officer’s duty to advise the driver of the Miranda Warnings has not yet been triggered because the person is not yet under arrest.

Questions asked during this time are considered merely preliminary in nature. And yes, any answers given by the driver during this time are fair game for officers and prosecutors to use in a DUI case against the driver.

It would be a different story if, after the DUI stop, the driver is arrested, but not given Miranda Warnings. If the officer then proceeds to ask the driver questions and the driver answers, those answers would be in violation of Miranda and thus in violation of the 5th Amendment.

So whether it’s before a driver is arrested or after with Miranda Warnings given, a person never has to talk to officers or answer questions. The 5th Amendment right to remain silent exists whether the Miranda Warnings are given or not. Use it! When stopped on suspicion of a California DUI, simply respond to any questions with, “I respectfully decline to answer any questions under the 5th Amendment. Am I under arrest or am I free to leave?”

 

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