I’ve met with numerous clients who have been pulled over for a DUI and when they come into my office they tell me the officer never read them their rights. Most times, the client asks if the case can now be dismissed due to the officer’s failure to properly advise them of their right to remain silent. If only it were that simple.
The right to remain silent in a criminal case, commonly referred to as one’s Miranda warning, stems from a 1966 United States Supreme Court case. The case is Miranda v. Arizona (1966) 384 U.S. 436 and it essentially states that an individual must be informed of his or her right against self-incrimination before being questioned by the police, as well as of his or her right to consult with an attorney before and during questioning by the police whenever the police are attempting a custodial interrogation. The officer is also supposed to inquire whether the individual understands these rights and ask whether the individual wants to waive his or her rights to answer the officer’s questions.
A custodial interrogation is more than just investigative questions that a police officer will ask to determine whether a crime has been committed.
In a typical DUI arrest, an officer will ask you several questions about where you were driving from, how much food you had to eat, how many drink you consumed, and whether you will take any roadside tests to determine your sobriety. All of the officer’s questions, specifically the questions about drinking alcohol, effectively are asked to have you incriminate yourself.
However, the reason the officer does not need to provide a Miranda warning is because you’re usually not under arrest or in custody at this point. Law enforcement gets away with obtaining damaging statements from you because they are simply investigating whether a crime has been committed.
So, it’s in your best interest to remain silent and not answer questions about your alcohol consumption even before an officer gives you a Miranda warning.