Sunday, October 4, 2015

The Cop Never Read My Miranda Rights, Will My DUI Case Be Dismissed?

Having practiced DUI for more than 20 years I can honestly say this is the number one asked question by my clients.  The short answer to the question is most likely no.

Let me start by saying Miranda Rights mean the cop must tell an arrested person they have a right to an attorney and the right to speak to that attorney before answering any questions.  But why is this question the number one question asked?  Well, fundamentally it is due to the fact that in most movies and TV shows when a person is arrested the cops read them their Miranda rights so there is a misconception that Miranda is required in any case where a suspect is arrested, that is simply not the law.

Here is what California law states when it comes to the mandatory reading of Miranda rights in a DUI or any other criminal case:  First, the suspect must be told he or she has a right to a lawyer before they are questioned and prior to making any statements only if they are "in custody" which means there liberty is restrained in a significant way and they are not free to leave.  Second, Miranda is only required when the police intend to interrogate a suspect, meaning they intend to ask them questions that are intended to illicit an incriminating response. So, there is a two prong test before Miranda must be read.

Let's, apply that 2 prong rule in a DUI or drunk driving arrest:  First, a person is definitely in custody because they are handcuffed and placed in the back of a patrol car so this part of the two prong test is satisfied.  However,  the second prong is generally the issue,  this is where the test often fails.  The suspect must be in custody at the time the officer intends to question them about the crime.  In most cases, after arrest the officer no longer questions them about the facts of the crime, for example how much have you had to drink, etc.  Although the officer did ask many incriminating questions it was likely before the suspect was placed under arrest so therefore Miranda was not required.  In short, if the cop places you under arrest for DUI but does not further question you about the facts of the case, other than routine booking information, then Miranda is inapplicable.

There may be instances where Miranda could be implicated in a DWI case.  For example, if the cop arrests you and subsequently questions you about the crime to get you to make incriminating statements then your rights could be violated.  Here's an example, the officer arrests you, places you in handcuffs then sits you in the back of the police car and asks you how much you had to drink, where you drank and the times you drank the alcoholic beverages.  Here, Miranda is required because he asks the questions after you were arrested.  Cops know that the law would require the reading of rights in this instance so they most always ask the incriminating questions before placing you in handcuffs.

What if the cops did violate your Constitutional rights by violating Miranda?  What is the remedy?  In short, it is suppression of the incriminating statements, not dismissal of the charges.

There is one type of DUI case where Miranda is almost always required, it is one involving drugs rather than alcohol.  Here's why:  In drug cases the officer that arrests you will usually call out a DRE or drug recognition expert to further assess you for drug impairment.  Because the situation involves an arrest prior to the DRE being called out Miranda is required.