Colorado DUI and Miranda Warnings

One of the most common questions I get is "The Police didn't give me a Miranda warning. Can I get my case dismissed?" The answer is "usually not."

The Miranda warning as we know it was born as a result of the 1966 United States Supreme Court case Miranda v. Arizona. As a result of Miranda the police are required to inform arrestees of their right under the Fifth Amendment to the United States Constitution to remain silent during custodial police questioning. In order to insure that the right to remain silent is respected Miranda also requires the police to inform an arrested of his/her right to consult with an attorney during custodial questioning. Notice that I said "remain silent" and "custodial." Miranda applies to "communicative" evidence provided by a person, while in custody, in response to questioning by police. Miranda does not apply to questions you are asked and answer prior to being arrested or otherwise placed "in custody."

Another 1966 Supreme Court case, Schmerber v. California makes clear that a chemical test required as part of a dui investigation is non-testimonal and therefore not covered by Miranda. Police often do not give Miranda warnings because they tend to ask incriminating questions about the case before they arrest you.

Ever wondered why defense attorneys advise you not to talk to or otherwise cooperate with the police. It's not because defense attorney's are evil "cop haters" bent on the destruction of civilized society. You should severely limit what you say to police because police personnel are trained to purposely subvert Miranda by questioning people they intend to arrest before taking them into custody. An innocent statement like "I had two beers earlier this afternoon." could result in months of grief if an officer is trying to establish probable cause to arrest you for dui.

When might Miranda help a dui case? When the conditions for Miranda are satisfied, i.e., when the case against you is critically linked to post custodial statements you have made, under police questioning, without an advisement of rights or after invoking your right to remain silent without a subsequent waiver of those rights Can you use a Miranda defense in your case? Consult with an attorney on this issue!