Nothing in criminal law is more widely known than the phrase “read him his rights.” Unfortunately, it is also widely misunderstood. One place these rights are most misunderstood is in the DUI roadside stop.
What are “your rights?”
The rights police read to defendants are called “Miranda warnings.” The name comes from the U. S. Supreme Court case called Miranda v. Arizona 384 U.S. 436 (1966). Miranda warnings are designed to inform a suspect in a crime of certain rights and risks.
The rights are:
- the right to remain silent
- the right to consult a lawyer before answering questions
- the right to have a lawyer present when answering questions.
The risks are:
- those rights can be waived
- if the rights are waived, any statements made will be admissible in court.
When must police read you your rights?
Most people are confused about when Miranda warnings must be read and will tell me, “The officer never read me my rights.” They then ask, “What happens if they don’t read me my rights?”
Miranda warnings must be read before the police interrogate a person who is in custody. The key words here are “interrogate” and “in custody.”
“Interrogate” means more than just asking questions. The Supreme Court says the term “interrogation” under Miranda is “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innes, 446 U.S. 291 (1980). This is a pretty broad category of actions by police. Certain questions – such as booking information (name, age, etc.) – are not usually considered interrogation.
In custody means:
- you are under arrest, or
- you are restrained by police to the same degree as formal arrest.
Formal arrest is easy – the cop says “you are under arrest.” Restraint that amounts to arrest is determined by looking at a lot of things. These things include the location of the questioning, the nature of the questioning and several other things. Putting you in handcuffs and removing you from the scene is, in almost every case, restraint that equals arrest.
Police do not have to read you your rights unless they question you after arrest. In the usual DUI case the courts say you are not in custody when you are asked questions at the roadside, before the police arrest you. Police use this time to ask incriminating questions, knowing they can be used against you. They will ask how much you drank, where do you rate your sobriety on a scale of 1 to 10, whether you are affected by alcohol and anything else they can think of to help convict you.
You still have those rights, even if they don’t have to tell you.
Just because the police don’t read you your rights doesn’t mean you don’t have those rights.
- You ALWAYS have the right to remain silent.
- USE THAT RIGHT! SHUT UP.
You do not have to help the police to convict you. You do have to show them your license. You must get out of the car if ordered to do so. That is all you are required to do. You can simply say, “I do not want to answer questions” and “I want a lawyer before I answer questions.” Then keep your mouth shut. It may not keep you from being arrested. It will make it easier to defend you.
Do NOT get into an argument with police about your rights – shut up.
Do NOT resist arrest – you will get hurt and have more charges against you.
Do NOT do field sobriety tests (things like watching a moving pen or finger, standing on one leg or walking a line.) In almost every state you are not required to do them, so don’t.
You should, however, think very carefully before refusing a blood, breath or urine test. In most states the penalties for refusing a test are worse than the penalties for a first offense DUI. In Maine there is a 275-day suspension without a work license for a first refusal. The suspension for a first OUI conviction is 90 days with a work license after 60 days.
So what happens when police fail to read your rights?
Sometimes police ask questions after arrest without reading Miranda rights. Most people think this means the case is dismissed. That is not true.
A violation of Miranda by police simply means the government can’t use those statements against you in its case against you. Any evidence obtained as a result of the statement can be used against you. (Example: You tell police there is a sawed off shotgun in the trunk. The shotgun can be admitted in evidence against you.) They can also use your statements if you testify at your trial and what you say at trial is different from what you told police without Miranda warnings.
If you get stopped by police –
- Identify yourself with your license.
- Follow orders to get out of your car or submit to arrest.
- Tell police you do not want to answer questions.
- Tell police you want a lawyer.
- Argue with police.
- Answer questions.
- Perform field sobriety tests.