By: Diana Aizman
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney and have them present with you while you are being questioned. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning if you wish. You may decide at any time to exercise these rights and not answer any questions or make any statements.
Most people are not aware that during a DUI, the police are not required to read your Miranda rights when they are still conducting the DUI investigation (prior to arrest) or if they have placed you in custody and are not interrogating you.
The following are 4 things you should know about Miranda and DUI stops.
A Miranda warning, also referred to as Miranda rights, is a right to silence warning given by police to criminal suspects in police custody (custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in a criminal proceeding. Despite misconceptions regarding Miranda rights, they are only required where the individual has been taken into custody, i.e. arrested, and is then interrogated.
Miranda rights stem from the protection against self-incrimination in a criminal case in the 5th Amendment to the United States Constitution. “Miranda” comes from the case Miranda v. Arizona. In this United States Supreme Court case the court did not set forth an exact wording for these rights however it held that an individual must be advised of their 5th Amendment right to remain free from self-incrimination if 2 conditions are met:
- You are under arrest, and
- The police conduct a custodial interrogation1.
Both conditions must be present otherwise an officer is under no duty to advise of Miranda rights. “Custodial” means post-arrest. Interrogation must consist of questions designed to elicit incriminating responses.
As stated before Miranda rights advise you of your right to refrain from making statements that may incriminate you. It only applies to statements. In terms of a DUI charge, it does not keep out other evidence that can be used against you. It applies only to statements made after you have been placed under arrest and interrogated by the police. Therefore evidence of bad driving, presence of alcohol in your vehicle or on your breath, or your performance during field sobriety testing may still come in during your case.
You may invoke either or both of two rights under the 5th Amendment once your Miranda rights have been read. You may assert your right to remain silent or you may assert your right to an attorney.
If you do not invoke these rights, consent to questioning by the police must be voluntary, knowing and intelligent. Usually when the police obtain consent they do so by a written waiver that becomes part of your case file. If you consent to questioning and waive your rights any statements you make may be used against you in court.
Once you have been pulled over for DUI an officer will ask questions while conducting his investigation. The investigation for DUI occurs after the stop but before arrest. During an investigation the officer is looking for signs of impairment. Part of his investigation will include questions, performance of field sobriety tests and a breath test.
You are not obligated during a traffic stop to answer questions. During a stop you are not yet deprived of your liberty and therefore questions during a DUI investigation are not considered “custodial interrogation” as required for Miranda rights.
Once you have been placed under arrest, the “custodial” requirement kicks in, and this is when the officer is required to read you your Miranda rights prior to any questioning which may incriminate you.
The legal remedy sought for a Miranda violation is a suppression of evidence in court. This is typically done by your attorney on your behalf via a suppression motion based on violation of your 5th Amendment rights. The effect is not a dismissal of your charge, however if successful the motion will suppress, i.e. keep out, any of those statements you made which were obtained in violation of your Miranda rights. The prosecution will therefore be prohibited from introducing evidence of your statements made in violation of Miranda.
However, statements made during the DUI investigation may still come in, or any statements made by your own volition and not in response to interrogation by the police. Also, if you voluntarily, knowingly and intelligently waived your Miranda rights your statement will be admissible.
A violation of Miranda rights is a legal defense to DUI. While it does not result in a complete dismissal of a DUI charge, it does challenge the prosecution and make it harder for them to prove their case against you. Likewise, there are other available defenses to a DUI charge. Bad driving does not necessarily mean intoxication. Sober people can be bad drivers too. Rebutting “bad driving” is an available defense. Challenging the validity of the results of field sobriety tests, or challenging the officer’s training or how he conducted the tests is another option in defending a DUI. Challenging the officer’s objective observations such as “red eyes” or “slow speech” as these are things that can be caused by other things than just intoxication.
- Pitchess Motion (Review Officer Personnel File For Misconduct)
A plea bargain is a negotiated settlement of your case that occurs between the defense and the prosecution. A plea bargain allows a criminal defendant to know his/her sentence prior to pleading guilty. Typically a DUI charge will only be reduced where the prosecution has a weak case against a defendant. If successful in negotiating a reduced charge or a reduced sentence, or both, a defendant in California typically is offered “wet” reckless2 and “dry” reckless charges. These offenses are lesser-included offenses to DUI. Reckless driving is driving with a flagrant disregard for people or property.
This is typically the first level of DUI reduction that a prosecutor will offer in plea-bargaining. Wet reckless implies you were involved in an alcohol related offense. The benefit to a wet reckless reduction is there is no mandatory sentence enhancement for a repeat offender. A wet reckless conviction results in no mandatory jail sentence, lesser fines and no mandatory license suspension.
This is a misdemeanor reckless driving charge. When a “dry reckless” charge is negotiated there is a shorter probation involved, lower fines, and no license suspension. The major difference and benefit of a “dry” versus “wet” reckless charge is that a dry reckless is not considered a prior offense during subsequent offenses. California DUI and wet reckless charges are considered prior offense when an offender has a subsequent charge. This means a prior conviction of either offense will increase sentencing during a 2nd or subsequent DUI in a 10-year period. Dry reckless does not trigger the increase because it is not considered as a prior offense.
If you have been arrested for a DUI and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.