A comment that I frequently receive from clients is that the officer didn’t read them their Miranda rights when they were arrested. How does this affect their case?
The Supreme Court held in Miranda v. Arizona, that the Fifth Amendment of The Constitution requires officers to advise people of certain rights before a custodial interrogation. This means that an officer only needs to read a person their rights if they are in custody and if they are being interrogated.
A person is in custody if a reasonable person in that place “would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Herrera v. State. An interrogation is any questioning that is meant to gain an incriminating response.
If a person is questioned after being arrested and the officer does not read him his rights, any statement made can be kept out of court with a Motion to Suppress as well as any evidence that the statement leads to.
Many officers will not read a person their rights when they’re being arrested for a misdemeanor because they don’t ask any questions after the arrest. Before a DWI arrest, SAPD officers will frequently ask how much the driver has had to drink that night. This is an interrogation, but since it occurs before the driver is placed under arrest, there is no Fifth Amendment violation. If the officer asks the same question after the arrest, there is a Fifth Amendment violation, and the answer can be suppressed.
The important thing to know and to remember is that you have those rights even if the officer does not read them to you. You have the right to remain silent. If you are pulled over for whatever reason, and the officer starts asking you if you have had anything to drink, you are not required to answer, and should not answer, that question.
Sean Henricksen Law Firm
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