What Are Your Miranda Rights?
Interviewer: Can you share important information about Miranda and the right to have an attorney?
Aaron: Sure, everybody watches TV and has seen movies about Miranda Rights.
Interviewer: I always see, as soon as people are handcuffed they are read their Miranda rights. What happens in real life?
Aaron: Here is what happens; and why Miranda does not help out with DUI. A lot of clients call and say, “Hey, I wasn’t read my rights.” They do not have to read your rights in a DUI. This is because the cops get to ask a zillion investigatory questions.
They pull you over. They ask you questions while you are in the car and while you are outside the car. They give you field sobriety tests, blowing into a preliminary alcohol screening machine. Through all this, they ask you questions. They write stuff down and get all the information they need.
They ask all these different questions: How much did you have to drink? Where are you coming from? When was your last drink? Eventually, they make the decision to arrest you. Usually it is after your field sobriety test and after you have blown into that handheld breath machine on the side of the road.
By the way, you do not have to do field sobriety tests or blow into that machine on the side of the road, unless you have already been arrested. Actual custody is when they cuff you, if they want to. If they want to ask you questions after they cuff you, then they have to read Miranda.
They have to tell you that you have certain rights, such as a right to a lawyer. At that point, they have all the information they need already. They are not going to ask you other questions they are not going to use against you.
If they cuff you, put you in the car, fail to read Miranda and start asking you more questions, we can suppress the answers to those questions. “Oh I forgot; tell me how much you had to drink.” “I don’t think you were accurate on that. How much did you really have to drink?”
We can keep those answers out of evidence because they did not read Miranda. Unfortunately, some officers will say they actually did read Miranda when they did not. I do not see as much of that happening anymore, especially because things are being videotaped more.
California Highway Patrol (CHP) and most cars have them in California now. You can record and get video and audio of what is going on in the car; and what is going on outside the car. It is a dash cam.
It shows what is going on in front, if they place you there to do a field sobriety test. So Miranda is something that rarely comes up. It is something we rarely use as a defense.
Interviewer: People have a false sense of being protected by Miranda. This is because, as you said, before arrest people are asked all these questions and they incriminate themselves.
Aaron: Exactly. A lot of people call me and say, “Calling about a DUI, Miranda rights were never read.” That is the first thing they want to tell me. So I go over, like we just did, how Miranda applies. Then, we start looking for other defenses.
By Aaron Bortel
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