In DUI and other criminal cases an attorney reviews a client’s case to determine, among other things, whether the state violated the client’s Miranda Rights. A DUI Attorney can help you with your rights. Miranda rights consist of warnings that an officer must read to an arrested individual prior to any questioning. The Miranda warnings, which are required under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), may be summarized as follows:

1. You have the right to remain silent
2. Anything that you say can be used against you
3. You have the right to a lawyer before and during questioning
4. If you cannot afford an attorney, you have the right to an appointed attorney at the public expense before and during questioning.

Once a person who is under custody invokes Miranda rights by stating that he or she does not wish to answer any further questions or expresses the desire to have a lawyer present, custodial interrogation must cease until the arrested person is either provided with a lawyer or initiates further communication on their own. See Miranda, supra. If the Miranda rights are not read to the arrested individual prior to questioning by the officer, any statements made by the arrestee are inadmissible as evidence against him or her. See Miranda, supra. It is important to note that Miranda rights only apply to statements made in response to questioning by the state (i.e., a law enforcement official). Any statements made by the arrested individual which are not in response to questioning or interrogation by the state may be admissible in court. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682 (1980).

However, any statements made by the arrested person prior to arrest will not be protected under his or her Miranda rights. It is therefore critical to distinguish between a stop where the suspect is merely detained by the officer for investigation of a possible criminal activity versus a situation where the officer actually arrests the suspect. To determine when a suspect is technically under arrest and entitled to Miranda warnings, Washington has adopted the “Berkemer test” which is explained by the United States Supreme Court in Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. The test states that a suspect detained by law enforcement is not entitled to Miranda warnings until his or her freedom of action is curtailed to a degree associated with a formal arrest. See State v. Harris, 106 Wn.2d 784, 725 P.2d 975 (1986); City of College Place v. Staudenmaier, 110 Wn.App. 841, 43 P.3d 43 (1996).

A DUI case often starts off when an officer conducts a stop of a driver for some traffic violation (i.e., a driver is observed to be speeding or driving too slow, weaving, not following traffic signs, etc.). Upon being stopped for a traffic violation, the driver is not under arrest even if he or she is not free to leave. After the stop, the officer will make certain observations and ask questions to the driver which may lead the officer to suspect that the driver is under the influence of alcohol. At this point, there is still no arrest. The officer may then conduct some field sobriety tests and administer a portable breathalyzer test to the driver to obtain further evidence of intoxication. If the officer then collects sufficient evidence to have probable cause (evidence which allows an officer to reasonably believe that the suspect committed the crime) to arrest the driver for DUI then the officer must provide him or her with the Miranda warnings prior to questioning. After the Miranda rights are read, the officer must ascertain that the arrested individual understands them. See Miranda, supra. One may freely and voluntarily waive his or her Miranda rights and make any statements to the officer. See Miranda, supra. Upon a waiver of Miranda rights, any statements made by the arrested person are admissible against him or her. See Miranda, supra. It is important to note that one must expressly invoke his or her Miranda rights to ensure that an officer ceases from further questioning. If a suspect either does not expressly invoke his or her Miranda rights or waive them, any statements made after the Miranda warnings are given may be admissible against him or her. See Berghuis v. Thompkins, 560 U.S. _, 130 S. Ct. 2250 (2010). A violation of a person’s Miranda rights does not necessarily lead to a dismissal of the case; it only allows for the inadmissibility of any statements made by the person after the arrest. However, if the prosecution’s case is sufficiently weakened by the inadmissibility of the statements then dismissal of the case may follow. While it is important to cooperate with law enforcement in providing any required documents such as a drivers license or proof of insurance upon demand, it is best not to answer any questions and request counsel if you are stopped regardless of whether you are under arrest or not. Incriminating statements by a driver which assist the state in prosecuting a DUI case are often made prior to arrest when the driver is not protected by Miranda rights. Rather than trying to figure out whether your Miranda rights were violated, just don’t answer any questions!