Often those who have been arrested for a DUI believe that their case will simply be thrown out because officers did not recite their Miranda rights before incriminating statements are made or even at all. In fact, many of my own clients have expressed such with the exclamation, “But they didn’t read me my Miranda rights!”
Those clients have watched the movies and T.V. shows so they know that Miranda rights must be recited. And they might even be able to recite the Miranda rights themselves. Few, however, know when the law requires that officers give the Miranda rights.
Law enforcement is required to give the Miranda rights before a “custodial interrogation.” The idea is that, if a person does not know they have a right to remain silent, any confession they give while in custody cannot be voluntary.
This necessarily requires two things to trigger the Miranda warnings: 1.) custody, and 2.) an interrogation.
First, let’s talk about an interrogation. An interrogation for purposes of Miranda warnings occurs when officers do anything likely to elicit an incriminating response. Certainly this includes questions pretty standard in DUI stops; “Where are you coming from?” “How many drinks have you had today?” “When was your last drink?”
The question of when a custody occurs during a DUI stop, however, is not as straight forward.
A custody occurs when a suspect is under the physical control of an officer. However, a custody can also occur when a reasonable person would not feel free to leave the officer’s presence.
While someone suspected of a DUI cannot drive away from an officer after a DUI stop, the period following a DUI stop is deemed to be a “preliminary investigation,” not a custody. An arrest (ie. custody) cannot be made until an officer has probable cause to believe that the person is driving drunk. When an officer pulls someone over, they do not have probable cause to arrest someone. They get their probable cause through the statements that DUI suspects give during this preliminary investigation and inevitable failure of field sobriety tests.
Truth is that probable already likely exists before the questioning occurs when the officers observe driving that is indicative of intoxication, blood shot watery eyes, slurred speech, and notice the odor of alcohol. Few officers, however, will admit that they had probable cause before they began questioning the driver.
Consequently, most DUI suspects are placed in custody for purposes of Miranda and DUIs right before they are placed in the squad car and hauled off to jail.
Unfortunately, this means that, by the time officers are required to give the Miranda warnings during a DUI stop, the damage has already been done. Since most incriminating statements and responses to officer questioning are made before a DUI suspect is placed in custody, they are admissible as evidence in a DUI case.
God forbid, if you’re ever stopped and the officer begins asking questions about whether you’ve been drinking, do not give them any more ammo than they already have. Miranda does not yet apply and your statements will be used against you. Simply reply, “I respectfully decline to answer any questions under the 5th amendment. Am I under arrest or am I free to leave?”