In the case of Miranda v. Arizona (1966), the United States Supreme Court decided that a person’s 5th Amendment Right under the US Constitution, means that one has a right not to incriminate him or herself.  In the Miranda case, Ernesto Miranda was arrested and forced to remain in police custody for 2 hours, during which time police interrogated him.  He did not have a lawyer present and was not told that he even had a right to a lawyer or to refuse to answer the police or detective’s questions.  Eventually, Mr. Miranda confessed and signed his confession in writing.  Of course, the prosecution, armed with a signed confession was able to convince the jury to convict.

The U.S. Supreme Court ruled that when ever a person is in custody and being interrogated, no incriminating statements made by that suspect can be used against him or her in a court of law unless that suspect was first advised of his or her “Miranda rights”.  These rights include the right to remain silent, the right to have a lawyer present, that anything said can be used against you in court, and if you can not afford a lawyer one will be appointed to you at no cost.   Only if the suspect waives these rights, and then proceeds to incriminate him or herself, can such incriminating statements be used by the prosecution.


The trick about Miranda and one’s Fifth Amendment Right to not be compelled to incriminate oneself, is that the right to be warned only applies IF you are interrogated while in custody.  In Dui cases, it is rare that Miranda plays a role because police are trained to ask the driver every important question before they are arrested.  In other words, think about the typical DUI case.  The driver is pulled over and detained.  The officer asks the driver to exit the vehicle. He tells the driver he is going to ask him to perform several Field Sobriety Tests. Before the FST’s, the officer goes through a list of “Pre Field Sobriety Questions” that are printed on a form.  These questions include ones such as:

  • Where were you coming from,
  • Where were you going,
  • Where did you drink?
  • How much did you drink,
  • What did you drink,
  • What time did you start drinking,
  • What time did you stop drinking,
  • Did you feel the effects of alcohol or drugs?
  • Did you take any medication? When? How much?

While the driver is on the side of the road being asked these incriminating questions, the driver is usually considered “detained,” but not yet arrested and in custody.  Only if the officer has sufficient evidence that rises to the level of probable cause to believe a crime was committed, can the officer conduct an arrest.   Up until that point, the police can ask a suspect any question they choose and never have to tell the suspect about their 5th amendment right to remain silent and have an attorney present before answering any questions.  Since most police have obtained ALL the answers and incriminating statements they need, prior to the arrest, there is no need ever advise the defendant about his or her Miranda rights. 

In short, there is no rule that the police must always advise an arrestee of their Miranda Rights.  Rather, the rule says that if a suspect has been arrested and is in custody and the detective or police officer wants to ask questions that are likely to elicit an incriminating response, then no incriminating statement (such as a confession) will be admissible as evidence in court unless that suspect was properly Mirandized prior to being interrogated. 

So, it is clear why police rarely inform drivers stopped for DUIs of their right to remain silent.  They are not legal y required to, and they are clever enough to obtain a suspect’s statements before the law requires the officer to give the warning!

This is why it is so important that every person in this country know what their constitutional rights are.  You have a right to tell an officer you are not going to answer any questions without a lawyer present.  However, keep in mind that under California law, you are required to complete a chemical test IF you are arrested and you do need to let the officer know which test you want.  If you refuse to do a chemical test after being properly admonished about a refusal, then the DMV will suspend your license for between one and three years (no restricted license allowed).  But you are not required to do a preliminary breath test on the street prior to your arrest (the “PAS”), and you are not required to perform ANY of the FST’s. 

In Custody:  Being in custody is legally defined as when a reasonable person does not feel free to leave.  While most people would not feel free to just walk away from an officer talking to them, or after being pulled over, the Court’s view this in a somewhat unrealistic manner.  Essentially, unless you are handcuffed, in the police vehicle on the way to the station, in jail, or surrounded by several officers with guns, many judges will find that a suspect was “only” detained.  However, technically, in California, a person could be in custody for purposes of Miranda, but not be under arrest.  For example, if three officers order a suspect out of their vehicle at gun point and order him to sit on the curb while several officers are surrounding him and proceeded to question him without allowing him to use his phone, such a scenario would clearly rise to the level of custody even if the officers had not yet arrested the person. 

In 2002, the Ninth Circuit, in the case of United States v. Kim, found that statements made by Ms. Kim were inadmissible because police questioned her at length in a locked room, separated her from her husband, refused to let her talk to her son, told her what language to speak, where she must sit, and physically implied with their positioning that she was not free to leave. Obviously in such a case, even if a suspect is not formally under arrest, a judge would likely determine that the accused was in custody at the time of the interrogation.  In such cases, any statements made would be inadmissible without a waiver of the suspect’s fifth amendment rights.


A waiver of one’s 5th amendment right can be implied or express.  An express waiver includes obvious statements by an accused after Miranda rights are read, such as “Yes, I waive my rights”, or “Ok, I will talk”. 

An implied waiver is more subtle.  If police mirandize a suspect, and afterwards the suspect starts to talk, it will likely be considered an implied waiver by behavior.  Even if the police had not read the Miranda warning yet, a suspect can inadvertently waive their rights by initiating conversation with the police that lead the suspect to divulge incriminating information.  As long as a court can find that the implied waiver was voluntarily made, and was knowing and intelligent, the statements will be admissible.  The statement can not be made under coercion.  In other words, if the accused starts answering questions in custody after the officer promises to not arrest their son or promises leniency, then a defense lawyer will argue the statements were not made voluntarily. 

Even if a suspect is in custody, the government is not required to advise the person of their Miranda rights.  There has to be an interrogation, such that the questions are ones that would reasonably lead to an answer that could be incriminating.  For example, if the defendant is at the jail and the detective asks if he harmed the victim or where the gun was left, or even if the defendant had a weapon, all such questions are likely to elicit an incriminating response.  If the defendant answers the questions and his statements are incriminating, they will not be admissible in court unless the defendant was properly Mirandized prior to his or her answers and did not waive his or her Miranda rights.

If a defendant in custody provides voluntarily statements that are incriminating, then such statements can be used against him or her.  That is why no one in custody should volunteer any information, as even the most innocent seeming statement could be used against you later in court.


Aside from giving the officer your driver’s license, proof of valid registration, and proof of insurance, you do not need to answer any questions.  If you are being investigated for a DUI, I suggest you invoke your right to remain silent in a very clear and unambiguous manner.  Stating that you “want to remain silent” and that you “want to speak to a lawyer” is sufficient to invoke your right.  Police cannot question you after that unless you waive your right later or say something voluntarily.  After saying that you are remaining silent and want a lawyer, don’t say anything else.  Of course, under implied consent law, if you are arrested, you will need to provide a chemical test if you do not want your license suspended for between 1 and 3 years and the failure to provide a test used against you in court.  (For refusal DUIs, please see the Refusal DUI page.)


In most drunk driving cases, even if an officer makes the error of asking a question that elicits an incriminating response from the accused while in custody, it’s uncommon for a criminal case to be completely dismissed for this reason.  The remedy to a Miranda violation is simply the exclusion or barring of the statement as evidence in court.  The prosecution can still present all the physical evidence, including blood or breath tests and officers’ observations (assuming no other constitutional issues or evidentiary issues exist).   

If a key piece of evidence was obtained in violation of Miranda, the defense attorney will file a motion to suppress the evidence and if the judge grants the motion, the evidence will be suppressed (excluded.)

In some cases, the Mirandizing of the Defendant really HELPS a case!  In refusal cases, if an officer tells the accused that he has a right to remain silent and not incriminate himself and a right to an attorney, but then proceeds to insist the accused provide a breath or blood test, officer induced confusion could be a possible defense if the suspect ultimately refuses to provide a sample. 

In a no driving defense case where the identity of the driver is the main issue, an officer who fails to Mirandize a suspect who is in custody, could end up spelling the end for the case, if the only evidence of identity was obtained during the custodial questioning of the suspect.  So, in rare cases where the main evidence is obtained from an inadmissible statement, a Miranda violation could result in a criminal or DUI case being dismissed by the prosecution for lack of sufficient evidence.


No!!  Basically, every decent criminal defense lawyer will tell you that the safest thing to do is politely tell the officer you are exercising your right to remain silent and you would like an attorney present.  Even if you feel you already waived your right by talking to the officers or detectives voluntarily, you can always invoke your right and it must be respected.  In fact, even if you previously waived your Miranda Rights explicitly, you can ALWAYS tell police you do not want to talk any further and will not say anything else without first speaking to a lawyer.

Many people fear that if they refuse to talk to the police, that the police will think they are guilty and hiding something.  Don’t be afraid of this! It is the police officer’s job to find evidence against you.  Most officers are not interested or diligent in finding evidence to exonerate you.  Even if you are totally innocent, the best way to answer an officer’s request to answer questions is to say “no thank you officer. I will not answer any questions before speaking with a lawyer.”


An innocent person can make a statement that is taken out of context by police or that is unknowingly to the innocent person, incorrect.  See the Youtube Viral Video of Professor JAMES DUANE to understand why innocent people should not talk to the police…ever!

If you are facing a DUI charge or criminal offense charges in Los Angeles or Pasadena area courts, call me, attorney Ann Gottesman, for a free consultation.  I care about my clients and I am here to help you!