Mirada Rights and a DUI Arrest

Interviewer: Do many clients say, “Oh, they didn’t read me my rights. They violated my Miranda rights. You should get the whole case thrown out.”?

Basic Information: Some Answers to Police Questions Are Not Protected by Miranda

Jerald Novak: Unfortunately, 99% of our clients will call up and say, “The police officer did not read me Miranda.” Now, in some cases, in a very small minority of cases actually, that becomes very important. But in the vast majority of the cases, the questions that the police officer asks do not require Miranda. These include asking your name, your address, where you’re coming from.

This is basic information that they don’t need to Mirandize you for. Many times when a driver is stopped, they will volunteer information, and of course, that would not be a Miranda violation either. It really depends on the particular situation.

Once you are placed under arrest and the police officer is asks you additional questions, that’s the point at which Miranda kicks in. Then they advise you that you have the right to remain silent. Most people have said enough things and done enough damage to their case that the Miranda issue really doesn’t become relevant.

Prior to Hearing the Miranda Rights: Is It Possible to Say Too Much to the Officer?

Interviewer: Would you say talking too much to the police is one of the biggest mistakes people make and it hurts their case?

Jerald Novak: Absolutely because the police are trained to trap you into answers that are only harmful to you. Your best bet when dealing with the police is to be polite and politely decline to answer any questions. Here are some samples and the best ways in which to answer them:

“Where are you coming from?”

“I’m sorry, sir, I don’t wish to answer any questions.”

“Where are you going?”

“I’m sorry, sir, I don’t wish to answer any questions.”

“Have you had anything to drink tonight?”

“I’m sorry, sir, I don’t wish to answer any questions.”

“You know, I noticed that you were weaving down the road, and I just want to see what’s going on, so I can determine if you’re safe to drive home, or I need to do some additional testing.”

“I’m sorry, sir, I don’t wish to answer any questions.”

Your Rights: You May Politely Decline to Answer Police Questions

The minute you start answering questions, they start locking you into those answers, and sometimes because you’re on the spot, while you’re telling the truth, it may not be a completely accurate answer.

Let me give you an example. I had a gentleman who had gone out for his birthday with his family, and he had two glasses of champagne at the dinner table. He was driving home, the police officer stopped him for weaving within his own lane, and the police officer said, “Where are you coming from?” He said, “Well, we were just out celebrating my birthday.” The officer said, “Did you have anything to drink?” My client said, “Yes, I had two glasses of champagne.”

Answers to Seemingly Innocuous Police Questions Can Be Incriminating

Now the police officer has established that there was a traffic violation, there is an admission to drinking, and he is lawful to get my client out of the car to start taking some field sobriety tests. After my client gets out of the car, he says to him, “Where are you going?” He says, “I’m going home.” My client participates in the field sobriety tests and is ultimately arrested for DUI.

The biggest problem my client said was when he was asked the question “Where are you going?” and he said he was going home. The police officer wrote in the report that my client reported that he was going home, but was heading in the opposite direction of home. That established that he was clearly disoriented and confused.

What my client meant to say was that he was going two blocks out of his way to the 7-11 to pick up a gallon of milk and his ultimate destination was to go home. What he said and what he meant were two different things. That became a big issue in my client’s case.

I was able to get the police officer on the stand to cross-examine him. I asked him, “Officer, did you ask my client where he was going or did you ask my client what his itinerary was up to his ultimate destination?”

Of course, he said he asked my client where he was going, he said home, and I indicated in my report that he was going in the wrong direction. But he never asked him if he had any stops between where he was being stopped and where he was ultimately going.

Had my client had the opportunity to say, “Well, I’m going home, but I’m stopping at 7-11 first to get a gallon of milk,” that would have cleared that whole thing up. But the jury got the impression from the police officer’s perspective that my client was confused or disoriented or lost, when none of those things were true.

In answer to your question, it’s always best to be polite and not answer questions.

Interviewer: The problem is though, is it possible the officer would get mad and harass you anyway if you refused even politely?

Jerald Novak: Well, most likely, they will, but remember, by not participating in any questions and answers, you’ve given them no incriminating evidence, so it’s going to make their case extremely weak. They’re going to arrest you either way.

It is NOT Likely That You Will Be Able to Talk Your Way out of an Arrest

In my career, I don’t think I’ve seen it happen very often where the police officer stops you for some violation, and then says, hey, you know, I don’t have sufficient information to arrest you so I’m just going to let you go. It’s generally not the case.

Interviewer: So the message is, you can’t talk your way out of an arrest if it’s going to happen.

Jerald Novak: If you haven’t been drinking, if you’re not under the influence of drugs, and I’ve had it happen to me where I’m driving down the street and I’m stopped by the police for some reason, and the first thing they say is, “Have you had anything to drink?” My response is, “No,” and they say, “Okay, well I just want you to get out of the car and take some tests to make sure you’re safe to drive.”

“I’m sorry, sir, I don’t wish to participate in any tests.”

“Well, if you haven’t been drinking, why won’t you take any tests?”

“There are a lot of reasons, sir. First of all, it’s 10 degrees below 0. There’s terrible wind outside. I have a bad knee. I’m just not physically fit or capable. However, because I know I haven’t been drinking, I would be happy to participate in a preliminary breath test,” which is a portable Breathalyzer. Or, “I would be happy to go to the station, sir, and participate in a breath test.”

I can say that with confidence because I hadn’t been drinking, so I know there’s no issue. But talking your way out of it? That’s generally not a good plan.

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