One of the more frequently asked questions by clients who are arrested for DUI / DWAI or DUID (driving under the influence of drugs) is whether their case can be dismissed because the arresting officer did not read them their Miranda warning. Although a majority of people believe this to be our right, there is a common misconception about a police officer’s failure to read the Miranda warning and that the failure to do so is grounds or having the case dismissed. This is especially true as it applies to an arrest for DUI.
Because of the prevalence of police and legal drama television shows, most everyone knows the term “Miranda rights.” What they do not know is how these rights came about and how they are applied to statements of any kind made by a person accused of a crime. The Miranda warning was born from the landmark decision in the United States Supreme Court case Miranda v. Arizona, 384 U.S. 436 (1966). Ernesto Miranda was arrested by the Phoenix Police Department, based upon circumstantial evidence, which linked him to the kidnaping and rape of a young woman. Miranda confessed his crimes to the police after a lengthy interrogation, during which he was never advised of his Fifth Amendment right to an attorney during questioning or his right to remain silent and not make any self-incrimination statements.
As a result of Miranda v. Arizona, a formal Miranda warning must be given by the police to any criminal suspect in police custody before they are interrogated and asked any questions about what took place during the crime. Upon being advised of the Miranda warning, the suspect must affirmatively state that they understand their rights as read to them before any questions can be asked. If the suspect states that they do not wish to answer any questions and wish to remain silent or if they ask to speak with an attorney before questioning, then it is their right not to self-incriminate themselves and the all questioning must stop.
Miranda does not apply to preliminary question of a suspect prior to being arrested and any incriminating statements that are blurted out during a preliminary investigation can be used against a suspect in court. This is most typical in a DUI traffic stop where preliminary questioning is allowed and almost always routine. Police officers are allowed to ask a suspect for routine information such as name, date of birth, driver license, insurance and registration without advising him or her of their Miranda rights. Police are trained to ask incrimination questions such as “Have you been drinking?” or “How much have you had to drink tonight?” when asking for routine information and prior to arresting the suspect. However, any investigational questioning done by an officer in efforts detect or confirm the suspicion of intoxication does not have to be answered. The same rules apply to field sobriety testing; they are a search under Colorado law and an individual has the right to decline performing those tests.
Unfortunately, in most DUI cases, there is no requirement that a Miranda warning be given to a suspect, and if it is not read, the case is not automatically dismissed. As long as questions are asked before a formal arrest or custodial interrogation is made, then any statement made by a suspect can be used against him or her. In the majority of cases, Miranda only applies after the suspect is arrested and is subject to interrogation by the police.