The cop never read me Miranda. Will that help my case?
Probably not. But it does help in some cases.
What are Miranda rights?
Because of its presence on every cop show since the 70’s most Americans can recite their Miranda rights:
“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. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
But many Americans do not realize that Miranda is both limited in scope and lacking in teeth.
The officer never read me Miranda. What does Miranda cover?
Miranda only applies to (1) custodial (2) interrogation. “Custody” most often starts when you are handcuffed. “Interrogation” usually just means questioning. So Miranda rights usually only occur after you are handcuffed and being questioned. Consider what all has occurred before you were arrested and handcuffed for drunk driving:
- The officer observed and noted any bad driving behavior.
- You were pulled over.
- You were asked for your license and registration.
- The officer asked if you drank anything tonight.
- The officer may have asked what you drank, how much you drank, when you started, and when you stopped.
- During questioning, the officer observed if you had trouble retrieving your license, had slurred speech, bloodshot, glassy eyes, smelled like alcohol, flushed face, etc.
- The officer asked you to get out of your car and walk back to between your car and his.
- The officer observed whether you swayed, stumbled, or leaned on the car for support.
- The officer asked if you have any medical problems that would affect your field sobriety tests, or if you are on medication.
- The officer gave you the HGN eye test, observed jerking and said “Are you sure you only had two beers tonight? Come on, you be honest with me and I’ll be straight up with you.”
- Other field sobriety tests and questions followed: ABCs, walk and turn, one leg stand, finger dexterity …
- You were offered a preliminary breath test.
- You were handcuffed.
- MIRANDA NOW APPLIES … Unless it doesn’t!
It seems like your right to an attorney for the evidentiary breath test should now apply – the officer just said you have a right to an attorney. However, in Virginia you have no right to consult an attorney before a breath or blood test. If you say “no” to a chemical test until you are able to talk to an attorney you will be charged and probably convicted of “unreasonable refusal.”
The problem is that you have usually said and done everything the prosecutor needs you to say and do for your conviction.
What is the penalty for not giving me my Miranda rights?
The only penalty for not Mirandizing someone is simple exclusion of any statements they made during custodial interrogation. Unlike the 4th Amendment, it does not cause the exclusion of the other physical evidence collected – the breath or blood test still comes in.
Many “DUI top cops” routinely don’t Mirandize drunk drivers because they are rarely penalized in court for it.
Hopefully helpful hint:
Whenever you are questioned by police, just tell the officer you “are remaining silent” and then don’t say anything else.
The road to jail is paved with good confessions!