Despite common misperceptions…due in large part to what we see in television shows and movies…there is no legal requirement for police officers to read Miranda rights during a California DUI arrest.
These rights, which in essence advise you of your “right to remain silent” must only be given if you are (1) in police custody, and (2) being interrogated.
However, if you were in custody and the police interrogated you without first advising you of these rights, your California DUI defense attorney will likely have any statements made during that time excluded from evidence.
What are Miranda Rights in the DUI context?
Miranda rights typically consist of the following statements: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak with an attorney. If you cannot afford one, one will be appointed to you at no cost.”
If the above two conditions (that you have been arrested and are being interrogated) aren’t met, then there is no requirement for the officer to advise you of these rights. 
However, if these conditions have been satisfied… and the officer asks you questions without first advising you of your Miranda rights…your California DUI defense attorney should be able to have your answers suppressed from evidence. This is critical when it comes to fighting a California DUI.
But it must be noted that if the officer did advise you of your rights, any statements you subsequently made will be admissible as evidence against you.
The difference between a California DUI “investigation” and a California DUI “interrogation”
A typical California DUI investigation is considered just that…an investigation. So if the officer legally pulls you over and begins asking you questions such as:
- were you drinking?
- what were you drinking?
- how much did you drink? And
- what time were you drinking?
The officer is well within his/her authority to do. The little known fact is that you do not have to answer these DUI questions…and it is often better for you if you politely refuse to do so.
The reason that the officer is entitled to question you at this point is because up until you are actually arrested for Vehicle Code 23152a driving under the influence, the officer is simply gathering information to determine whether an arrest is appropriate. This is what’s known as the “investigation”.
An investigation takes place when legally, though not practically speaking, you are free to leave. And although you are not allowed to contact an attorney at this stage in the investigation, you can politely inform the officer that you have been advised to remain silent.
Once you are handcuffed…and are therefore no longer permitted to leave…your Miranda rights may kick in. That is, if the officer asks you more questions that are designed to elicit incriminating responses about your DUI. This is what’s known as a “custodial interrogation”. 
During a custodial interrogation, you have the right to remain silent. You also have the right to consult with an attorney before answering any questions. If you are advised of your Miranda rights…and choose to speak with the DUI officer…any statements you make can be used against you.
If the DUI officer fails to advise you of your Miranda rights…and asks you questions that are designed to elicit incriminating responses…your California DUI defense attorney will most likely prevail on a motion to exclude those responses from evidence.
If, however, the DUI officer fails to advise you of your Miranda rights…and engages you in a casual conversation…any incriminating statements that you make will likely be used against you. And so it bears repeating…in order to receive Miranda protection, the officer must interrogate you. This means that a casual conversation (even if contrived) may not rise to the level of this Fifth Amendment protection.
It is also important to note that if you choose to remain silent, your silence cannot be used against you.
If the DUI cops violate my Miranda Rights, does all the evidence get thrown out of court? 
Unfortunately, no. Miranda rights only apply to testimonial (that is, verbal) evidence. This means that in a California DUI investigation, evidence of your
- driving pattern,
- physical appearance (examples include slurred speech, red/watery eyes, and a lack of balance),
- performance on field sobriety tests, and
- blood alcohol concentration (BAC) as reported by a chemical blood or breath test,
are all admissible regardless of whether the officer informs you of your Miranda rights. Only actual, verbal statements are protected by the Miranda advisement.
If you have additional questions or would like to discuss your case in confidence with a California DUI defense attorney, contact our office at (619) 238-1905 for a free consultation.
