Presented by:

The Law Office of Clifton Hypsher
3780 South Broadway
Englewood, CO 80113

 

 

 

 

Please call 1.877.362.9091 Toll Free for a free telephone consultation

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 "no."

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 person of his/her right to consult with an attorney during custodial questioning. Notice that I said "remain silent" and "custodial questioning." 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 or answer prior to being arrested or otherwise placed "in custody." In other words a reviewing court would probably find that questions asked by the police while standing at your car window or on the sidewalk prior to administering field sobriety tests, were asked while you were not "in custody" for Miranda purposes. Because you were not in custody your answers would be considered "voluntary" and not subject to "suppression."

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 placing them in handcuffs. An innocent statement like "I had two beers earlier this afternoon." could result in months of grief for you and your family if an officer is trying to establish probable cause to arrest you for dui.

When might Miranda help in 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!