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The Law Office of


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Can What You DON’T Say Be Used Against You ?… Possibly Now… Yes

It is well settled law that the police, short of their duty to read you your Miranda rights, have NO DUTY TO EDUCATE YOU ABOUT THE LAW OR YOUR RIGHTS.

An example of this I see every day is when people come meet with me after they’ve been arrested for a DUI and they tell me that, while after the officer had pulled them over for a mere investigative detention and was asking them a bunch of questions, they made some statements they fear may be used against them. Usually a person makes some statement in response to an officer’s questions regarding whether the person has been drinking and the person believes (wrongly) that if he admits to the officer s/he has only had one or two drinks, such honesty will win the officer’s respect and motivate the officer to ‘go easy’ on the person and possibly even let them go with only a warning. Nothing could be farther from reality. Such statements are considered ‘admissions’ and are almost always used against the person in court.

The general advice to people that may be involved with some criminal activity, including everything from breaking the speed-limit, to being suspected of driving under the influence of alcohol or any other substance (DUI), as well as any other more serious crime is, ‘although it’s human nature to apologize, ask questions, try and accommodate a police officer’s questions, or even make sympathetic statements to a victim (unique to California) in an effort to improve the situation… it’s best not to say anything because you never know how your statements will later be used against you.

A recent California Supreme Court decision further solidifies the importance of contacting San Diego’s best DUI defense attorney, before the defendant not only affirmatively says something that can be used against them in court… but apparently now, before they do not say something that can be used against them in court as well.

The protections of Miranda, for the most part, are designed to protect people from accidentally saying something or not saying something, during the confusing and/or intimidating situation when they find themselves confined by police action and they make an assertion (either by statement or conduct) in response to a police question or conduct.

Although a person merely remaining silent does not generally actually engage their Miranda protections, a person’s silence (their un-statement if you will) generally cannot be used against them during a court proceeding (with even stronger protections in criminal proceedings) because of the protections of hearsay, absent a few exceptions.  One hearsay exception exists when a person admitted to something.  Such admission can be proved by the person’s failure to make a statement when they could/should have.  However, such un-statement will generally only be allowed to be introduced as evidence when the person’s 5th Amendment right to silence (Miranda protection) is not in existence.


The recent California Supreme Court ruling in People v. Tom shows how important it is to have the best representation possible to navigate situations where Miranda protection has now become increasingly less clear.


California’s Supreme Court decision in Tom, now muddies the waters slightly with regard to when people’s right to silence is protected and what they need to do in order to be protected by Miranda.  Apparently, according to the decision in Tom, if you are in custody, you may have a limited right to silence.  And on top of that, if there are possible victims involved in the event (such as if you hit another vehicle while you were allegedly intoxicated) and you don’t break your silence and affirmatively ask how those other people are doing, that silence can be used against you in court.  (ABC News: Court: Silence Can Be Used Against Suspects)

In People v. Tom California’s Supreme Court justices upheld the prosecution of a man (Richard Tom) based on the district attorney’s argument that Tom’s silence (failure to ask police officers about the condition of the people in the car he hit) should be considered as evidence that Tom be found guilty of acting without regard for the well-being of others – i.e. ‘gross vehicular manslaughter’.


Last week’s decision in Tom stems from a horrific 2007 car accident in Redwood City, south of San Francisco.  Richard Tom broadsided Loraine Wong’s car at a high-speed (allegedly traveling 67 in a 35 zone) killing her 8-year-old daughter and seriously injuring her 10-year-old daughter.  Tom was in custody (de facto arrested) but had not yet been asked any questions that could elicit incriminating responses.  If both had actually existed, this would generally trigger a required reading of Miranda which would then clear the path for any affirmative statements, lack-of-statements, or conduct that basically amounts to a statement, to be allowed to be introduced in court against him.


However, oddly enough, even though Richard Tom was in custody and had yet to be read Miranda, the prosecution used the reasoning of the U.S. Supreme Court in Salinas v. Texas to pull in evidence of Tom’s failure to make statements to support Tom’s guilt.  Per Salinas, a suspect practically needs to affirmatively invoke his right to remain silent (“Hey, officer – I’m asserting my Fifth Amendment rights”) to not have his/her silence (which they have a right to) used against them.


Granted, it is a strong moral argument that a person, who allegedly caused a situation where others might be injured, should have an affirmative duty to ask about the well-being of those other people he put in harm’s way.  However, on the other side, if a person says something to police in the intensity and confusion of the moment, should such a statement be allowed to be used against them?  And to what level of knowledge should the person know that others are (or are possibly) injured before we allow their failure to ask about the other’s well-being to be introduced against them?  Additionally, if someone is required to say ‘something’ and they are given protection that that something will not be used against them in court, ‘what’ should they be required to say?  Should there be an approved list of statements that are protected?


Most people who are arrested find themselves in a confusing and upsetting situation – and the easiest way not to say anything wrong is simply to stay silent, explained ACLU of Northern California’s amicus brief in the Tom case.  Additionally, Justice Goodwin Liu, wrote a dissent to the Tom decision.  “The court today holds, against commonsense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent… To whom and how should [Tom have] invoked the Fifth Amendment privilege?” Liu asked.


Under the situation as approved by the high court, Liu wrote (quoting a prior case), “a suspect now has ‘the cruel trilemma’ of either, incriminating themself, lying, or demonstrating their guilt by silence.”  That hardly seems reasonable – and it certainly makes things unclear, especially given that the requirements differ depending on whether a suspect will be tried in state or federal court.


The new state of affairs won’t make much sense to people who merely watch those police dramas where everyone knows that a suspect is allowed to stay silent.  But if you are arrested for a DUI and either said something or, apparently now per People v. Tom, did not say something, the technicality will become painfully clear.


If you or someone you care about has recently received a DUI and you’re feeling confused, scared, intimidated by the situation, or even embarrassed by the event, know that people that many think should “know better” have made the same mistake as you.


The important thing to do is call me as soon as possible so we can get your questions answered.  You’ll likely only get one shot to successfully defend your DUI case.  It is vital you hire an attorney with the experience, knowledge, training and courtroom experience to aggressively defend your DUI case.

Contact the Law Office of Chris Sohovich now for a free case evaluation at 619-326-8161.