A driver arrested on suspicion of drinking and driving typically is read his or her rights as the arrest is taking place. These rights are known as a Miranda warning, based on the U.S. Supreme Court’s historic Miranda vs. Arizona decision. If police do not advise a suspected drunk driver of his or her rights prior to questioning, any information gathered during the interview may be suppressed by the efforts of an experienced DUI defense attorney.
The exact wording of the “Miranda Rights” statement is not specified in the Supreme Court’s decision. Instead, law enforcement agencies have created a basic set of simple statements that can be read to accused persons prior to any questioning. Police agencies typically use the following statement to inform people of their Constitutional rights:
You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to have an attorney present now and during any future questioning. If you cannot afford an attorney, one will be appointed for you at no cost.
If an arrestee is to be interrogated, he or she must first be informed in clear and unequivocal terms that he has the right to remain silent. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. The right to have a lawyer present during interrogation is indispensable to the protection of the driver’s Fifth Amendment rights. The Fifth Amendment privilege includes the right to remain silent, and the protection from incriminating statements used against oneself in a criminal prosecution.
Drivers held for interrogation must be clearly informed that they have the right to consult with a lawyer and to have the lawyer present during interrogation. In order to fully advise a person of his or her rights under this system, police must warn the driver not only that he or she has the right to consult with an attorney, but also that a lawyer will be appointed at no cost for individuals who cannot afford one.
If the individual voices a desire to consult with an attorney, the interrogation must cease until a lawyer is present. At that time, the individual must have an opportunity to confer with the attorney, and to have him present during any subsequent questioning. If drivers who cannot obtain an attorney indicate that one is wanted before speaking to police, investigators must respect the decision to remain silent.
However, an individual can be arrested without being read a Miranda warning. The purpose of a Miranda warning is only to protect a suspect from making incriminating statements during questioning. All police need to legally arrest a person is probable cause – a reasonable belief that an individual has committed a crime. Police are required to read the Miranda warning only before interrogating a suspect.
While failure to do so may cause any subsequent statements to be thrown out of court, the arrest may still be legal and valid. Also, police are allowed to ask routine questions such as name, address, date of birth, and Social Security number without reading the Miranda warning. Police can also administer alcohol and drug tests without warning, but persons being tested may refuse to answer questions during the tests.
The Miranda warning only governs communications and testimony. A violation of Miranda rights cannot result in the exclusion or real or physical evidence. This means that during a DUI / DWI investigation, an officer will use the way in which a statement is made against the defendant. For example, if the defendant had slurred speech or seemed disoriented, the officer may note these facts on the police report.
Typically, the central Miranda issue in DUI / DWI cases is whether the defendant was under arrest during an interrogation where he or she made incriminating statements. Generally, statements made prior to arrest are not subject to the Miranda decision. Generally, pre-arrest questions are only investigative in nature and normally occur during relatively brief traffic stops. Answers to questions such as “Where have you been?” or “Have you been drinking?” are typically admissible in a DUI / DWI case.
A traffic stop or a field sobriety test does not constitute an arrest, and, therefore, Miranda warnings are not required, regardless of whether the suspect has a right to refuse the tests. The privilege against self-incrimination is only a privilege against giving testimony against oneself, and does not protect the accused from giving real or physical evidence. Field-sobriety tests are physical evidence, not testimonial evidence, and do not violate the privilege against self-incrimination.
Police officers have been trained to ask questions and obtain as much information as they can before an arrest has actually taken place. The police do this to ensure that the statements will be admissible against the defendant. But if police ask questions after arrest, without advising a driver of his or her Miranda rights, any information obtained likely will be inadmissible. A lawyer who specializes in DUI / DWI defense will seek to have any such evidence suppressed.