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Generally speaking, police are actually not legally obligated to read you your Miranda rights during a roadside DUI investigation, UNLESS:

  • You were placed under arrest; AND
  • You were asked incriminating questions, i.e., you were interrogated.

Miranda warnings, under "Miranda v. Arizona,[1]are admonitions the police must read to you before they ask you any question after they have placed you under arrest. The warnings usually start with the statement “You have the right to remain silent.”

After a DUI arrest, a Miranda warning is actually not always required

There is a fallacy that police necessarily have to read you your Miranda rights after they have arrested you. However, Miranda warnings must only be issued if you were arrested and you were being interrogated (i.e., being asked questions the purpose of which is to elicit incriminating statements from you.)

What this means in a practical sense is that the cops do not have to read you your rights when:

  • They are still running a DUI investigation, (i.e., they pull you over but haven’t yet arrested you); OR
  • They have arrested you but have not yet started to interrogate you.

What is the remedy for a Miranda rights violation?

Your DUI defense attorney can file a motion to suppress evidence according to California Penal Code section 1538.5 if the prosecutor tries to admit your incriminating statement after you were arrested but were not read your Miranda rights.

If the judge approves your lawyer’s motion, any incriminating remarks you made after the warning should have been issued will be rendered inadmissible. This has the practical effect of substantially undermining the prosecutor’s case against you. This can give your DUI attorney significant leverage or bargaining power in trying to reduce the charges or even get your charges dismissed.

To provide you with a better understanding of how Miranda warnings work in cases, our DUI defense attorneys discuss the following:

1: What are Miranda Rights?

“Miranda rights” is a term coined from the case Miranda v. Arizona.[2] As mentioned earlier, these are admonitions or warnings that the police must read to you before they ask you any question after they have placed you under arrest. The rights being read to you come from your right against self-incrimination as provided in the Fifth Amendment to the United States Constitution. It applies to all criminal cases including DUI cases.

According to Miranda v. Arizona, an arrested person must be informed of their constitutional rights if these two things are present:

  • The suspect is in police custody and is not free to leave
  • The police want to conduct custodial interrogation (interrogation after arrest).

If the suspect is free to leave or is not being interrogated, the Miranda warning is not necessary.

However, keep in mind that in some jurisdictions, even if a person has not been arrested, they may still be considered to be “in custody.” The test to determine whether a person is in custody or not is whether a person in a similar situation would believe that they can freely leave during the questioning or interrogation.[3] If not, then they are considered to be “in custody.”

2: What is the Wording Used in Miranda Warnings?

There are no specific words required to make a Miranda warning valid. Any words may be used provided that a person’s rights are made clear.[4] Typically, a Miranda warning will include the following statements:

  • 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 talk to a lawyer and have him or her with you during questioning
  • If you cannot afford a lawyer, one will be appointed to represent you before any questioning if you wish
  • You can decide at any time to exercise these rights and not answer any questions or make any statements

After being informed of your rights, the police will then ask if you have understood the rights read to you and if you wish to waive these rights and speak to them.

An arrested person does not need to speak to police and can invoke the above-mentioned rights at any time, even if the arrested person has already begun talking to the police.[5]

3: Is the Police Required to Give a Miranda Warning During a Traffic Stop and Investigation?

No. A Miranda warning is not necessary during a DUI investigation. A DUI investigation includes everything that transpires from the moment of the traffic stop up until an arrest is made. The same holds during a stop at a DUI checkpoint.

During a traffic stop and DUI investigation, a driver is not yet considered to be “in custody” so it is not required for the police to give a Miranda warning before questioning the driver.

DUI Investigations

During the course of a DUI investigation, the officer may:

  • Ask for your driver's license and registration (in some states the officer will ask for proof of insurance)
  • Ask the driver to perform field sobriety tests or “FST”
  • Ask the driver to take a preliminary alcohol screening or “PAS” (usually a breath test)
  • Ask the driver to provide a cheek-swab sample (usually performed for DUI with marijuana or other drugs)
  • Ask questions to the driver to see if the driver is displaying signs of intoxication including:
  • Slurred speech
  • Dilated pupils
  • Red and watery eyes
  • Alcohol smell
  • Other possible signs of intoxication

The officer may also ask questions such as:

  • If you have been drinking
  • Where you just came from
  • If you have taken any sort of medication or drugs, among others.

4: Right to Remain Silent During a DUI Traffic Stop

A person always has the right to be silent when talking to the police this includes DUI traffic stops. You can politely decline to answer the questions asked by an officer during a DUI stop. But you are required to show your license and registration when asked for it. You do not need to be read your Miranda rights for you to be able to exercise these rights.

5: Miranda Warnings After a DUI Arrest

Miranda warnings are not necessarily required immediately after arrest but giving the warning is required to be able to initiate the custodial interrogation.

A custodial interrogation is when an officer asks questions that tend to yield incriminating answers. These questions might be similar to questions asked during the DUI investigation (after the traffic stop).

The difference is that these questions may be asked legally without giving the Miranda warning during the DUI investigation. But once a driver is placed in custody, the Miranda warning is required before these questions may be asked.

6: Invoking Your Miranda Rights

No specific words are required to be able to invoke your rights but you must be able to state it clearly that you are indeed invoking these rights. Mere silence is not enough[6] to invoke your rights because mere silence can be introduced as evidence of guilt. For example, you should clearly say “I am invoking my right to be silent” or “I want to speak to my lawyer.”

Protecting your rights after a DUI arrest

If you have been arrested after a DUI investigation, it is advised that you take the following steps to protect your rights:

  • Clearly state that you are invoking your right to be silent
  • Ask to speak to a lawyer (you can ask to speak to your lawyer or if you have none, ask for a public defender)
  • Say nothing else until your lawyer is present

7: Waiver of Rights

At the end of the Miranda warning, the officer will usually ask, if you understood your rights as they were read to you and if you still wish to speak with the officer after having heard your rights. The officer is not required to use specific wording to convey this message.

Express and Implied Waiver of Rights

There are two ways to waive your rights:

  • Expressly
  • Impliedly

An express waiver of rights requires a statement from the driver. For example, after giving the Miranda warning, the officer might ask “Do you understand?” If the driver understood and answers “yes,” the officer might ask after “Do you still wish to speak to us?” If the driver responds “yes” then that will be considered an express waiver of rights.

Usually, the officer will then ask you to sign a written waiver acknowledging that you are waiving your rights. However, this is not necessary and refusal to sign a written waiver does not necessarily mean that the rights were not waived.

A waiver of rights can also “implied”. This means that the waiver can be inferred from your behavior. This includes making a statement to the police - either before or after a Miranda warning is read.[7] Giving a statement to the police will be considered an implied waiver of rights so long as it is made in a manner that is “intelligent,” “knowing,”[8] and “voluntary.”[9]

“Intelligent” and “knowing” simply means that the person giving the statement, even after receiving a Miranda warning, understands that they do not have to make the statement but does so anyway.[10]

“Voluntary” means that a person gave the statement freely, without being coerced.[11] Coercion does not necessarily mean the threat of violence. Coercion can be anything that improperly compels someone to make a statement or admission when they would not have otherwise done so without the coercion.

8: Invoking Your Rights After Waiving Them

Even if you have expressly or impliedly waived your rights, you may still invoke your rights afterward. This is because you can invoke your rights at any time.

This means that after invoking your rights, any incriminating statements you made after will be inadmissible as evidence. A person may still invoke their right to remain silent or right to an attorney even after they have agreed to answer the officer’s questions.

9: Do You Need to Exercise all Your Miranda Rights at Once?

You can exercise your right to remain silent at an earlier time while still retaining the right to call for an attorney at a later time. The only requirement is that you must exercise your rights affirmatively. This means that you must be able to clearly communicate that you are choosing to invoke and exercise these rights.

Keep in mind that asking to speak to an attorney is a form of invoking your right to remain silent. Once you ask to speak to a lawyer, the officer must stop the questioning immediately and wait until your lawyer becomes present to be able to continue asking questions.[12]

10: Effects of Miranda Rights Violation in DUI Cases

If your Miranda rights were violated in any way, your lawyer can file a motion to suppress evidence.[13] If the judge grants the motion, all evidence obtained after the violation, including statements made after the rights were violated, will be excluded from the evidence against you.

The following are examples of how your rights may be violated:

  • Failure of the police officer to give any warning at all
  • Failure to read Miranda rights before the custodial interrogation
  • Continued questioning even after the right to remain silent has been invoked
  • Continued questioning without the presence of a lawyer when one was asked for
  • Coercing the person in custody to waive their rights

Statements that Can Still Be Used

Even if there was a Miranda violation, this does not necessarily mean that the DUI case will also get entirely thrown out. This also does not mean that all the statements provided to the officer will also all be excluded. The only things that will be excluded from evidence are those statements made after the violation of rights was committed.

Statements obtained during the DUI investigation, statements voluntarily provided by the driver (not given during the interrogation), or statements made after the voluntary waiver of rights will still be included in evidence.

Other Evidence of Driving Under the Influence

The statements you provide to an officer are not the only evidence that may be used against you in a DUI case. Even if a Miranda violation was present, other evidence may be introduced to prove that you were indeed driving under the influence, such as:

  • Other traffic violations committed
  • Signs of intoxication and impairment (slurred speech, dilated pupils, red and watery eyes, alcohol smell, etc.)
  • Actual alcohol and/or drugs or drug paraphernalia found in the vehicle
  • Driver’s performance on field sobriety tests
  • Results of breath test or blood test
  • Possible traffic camera footage
  • Police video of the encounter (in jurisdictions that use the same)
  • Statements by possible witnesses

DUIs and those matters involving your Miranda rights can be complicated and difficult to navigate on your own. Do not hesitate to contact us at 626-827-7222 to schedule your no-cost consultation with our experienced DUI attorneys. Despite how busy we are fielding inquiries from people who desperately want our help, we will do our best to put you in contact with an experienced DUI defense lawyer from our firm.

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