The Law Office of


(619) 326-8161
The Law Office of


(619) 326-8161
Put the power of an attorney who's been a
Judge's Assistant and Deputy District Attorney
on YOUR side.

Were You Read Your Miranda Rights

Can The Fact You Were Not Read Your Miranda Rights Lead To Your DUI Case Being Thrown Out ?

Many people who come see me believe that because they were not read their Miranda Rights their DUI case should be ‘thrown out’. Although there can be situations where a failure of the Miranda requirement can be fatal to the prosecution’s case, this is not the norm.

The fact people had to be made aware of their rights (to silence, to have an attorney present and/or have one appointed if they can’t afford one) was clarified in the case Miranda v. Arizona.

When I was a Deputy District Attorney, I saw first-hand how damaging to a case a Miranda violation could be. I saw how when an officer violated Miranda, vital evidence the prosecution needed had to be excluded from the court-room, which many times led to the District Attorney having to drop the charges against the defendant.

However, that being said, although there are times the Police’s violation of Miranda might lead to vital evidence that could be used against you by the prosecutor being thrown-out (excluded or becoming inadmissible), it is important to understand exactly when a person must be read their Miranda rights, what happens when Police Violate the Miranda Rule, and what exceptions exist for the Miranda requirement.

When is an officer required to read a person their Miranda Rights ?

The Miranda Rights exist under the 5th Amendment Right against self-incrimination during custodial interrogations.Absent an exception (a recent well-known example is the Boston Bombing suspect) two elements must exist at the same time for the Miranda Rights requirement to come into existence:

  1. the person/suspect/defendant must be “in custody”. It’s important to understand, “in custody” does not always mean the person is in hand-cuffs or incarcerated, and conversely, a person who is incarcerated is not always considered “in custody”.
  2. the “communication” by the suspect must have been “in response” to a Government agent’s “interrogation”.

Although an in-depth analysis of the application of Miranda is too lengthy for this page, at the risk of over-simplifying the topic, sometimes conveyed another way… the Government (Police) do not have to read a person their Miranda Rights unless: 1) the person was arrested, and 2) the Officer intended to ask a question(s) that a reasonable person in the officer’s position knew or should have known would urge the suspect to respond with a communication that would likely be used against the communicator in a prosecutorial hearing.

How Does Miranda Apply in DUI Situations

Turning to the application of Miranda in DUI situations, although you may not like this, the grey area that the courts generally see in favor of police is that in the beginning, the person is only “detained” (pulled-over), and not “arrested” so the officer can perform an investigation to find out whether there is enough additional facts/cause to “arrest” the person the officer suspects of having driven under the influence (DUI).

And remember from before/above, that when a person is in hand-cuffs s/he is not always necessarily “in custody”, the person may only be in a state of being “detained” for the officer to conduct his investigation. And the hand-cuffs are not necessarily because the person is “arrested”, but merely an added measure for the officer’s safety while the officer conducts his/her investigation.

This pre-arrest “investigative” time period (although must be reasonable in length in light of all the surrounding circumstances) typically begins from the time the person was pulled-over (“detained”) and extends all the way up until the time the person IS actually “arrested” (not merely “in custody” so the officer can perform his/her “investigation”).

“The Surrounding Circumstances” Control When It Comes To What The Officer and/or You Were Required To Do

According to the U.S. Supreme Court, Police Officers may approach, identify themselves as a member of law enforcement, and attempt to engage people in consensual conversations/encounters which can include asking questions without having actually “detained” the encounter-ee. (Florida v. Royer)

Additionally, the Police attempting to engage the person into a consensual encounter do not have to inform the person that they have the right to terminate such an encounter (i.e. – has the right to tell the officer s/he does not wish to talk and wants to go on their way).

Furthermore, a “detention” doesn’t have to be “explicit” and can be “implicit” such as when several officers confront the suspect. Other circumstances that may support a “detention” include whether the officer displayed signs that the person was not free to leave – such as displaying a badge, weapon, using forceful language or stern tone of voice (such as stated “stop” in a forceful voice) (U.S. v. Mendenhall).

When a person is “lawfully” detained while driving (pulled-over), because it’s law that people must have their driver’s license with them as well be covered by liability insurance, the officer generally may ask the person for identification and their proof of insurance. Additionally, (as per above) the officer can “ask” other questions and the detainee (although has the right to decline to respond) can consensually respond. And such responses can be seen as information the person “voluntarily” offered in response to pre-arrest investigatory questions and if the person is not yet arrested, Miranda is not yet required.

As you can see, there is clearly the existence of window when Miranda is NOT required, and when it IS. And having an attorney that can identify and successfully argue exactly where in the time-line the Miranda warnings should have been read, can mean the difference in having any/all evidence acquired as a result of that violation, excluded (“thrown out of court”).

Exceptions To MIRANDA

As mentioned above, there are basically 3 exceptions to the Miranda requirement:

  1. an on-going existing Emergency generally defined in New York v. Quarles
  2. a threat to the Public’s Safety (U.S. v. Liddell, 517 F.3d 1007 (8th Cir. 2008); U.S. v. Estrada, 430 F.3d 606 (2d Cir. 2005)). However, courts differ about when such a threat actually exists, or continues to exist.
  3. General “Booking Questions” – booking questions are not considered part of an “interrogation” so long as the questions are not designed to elicit incriminating information and therefore Miranda warnings are not required (Pennsylvania v. Muniz)

As you can see constructing a powerful DUI Defense requires extensive knowledge and experience.

Why Putting a Former Deputy District Attorney On YOUR Side Can Make All the Difference In a DUI Defense

The reason putting a former Deputy District Attorney on YOUR side can make all the difference in a DUI Defense is because a win or loss in a DUI Defense case always stems from a violation of a person’s constitutionally protected rights.

Although this might sound simple, using the Constitution and precedent case law which helps define the protections afforded by it, is something an attorney is only able to do effectively after years of experience and training… and from fighting countless cases in the heat of battle in the courtroom.

The reason an attorney does not typically have the skills to successfully defend your DUI case until s/he has had to perform under the pressures of courtroom combat, is because the cases that surround the issues that can lead to your DUI loss or win are many and varied and can become confusing to even to the most accomplished research attorney.

Put the power of a Former Deputy District Attorney on YOUR side.

Whether you have been charged or arrested for a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI or El Cajon DUI, if you’re looking for San Diego’s Best DUI Defense Attorney, you must speak with Attorney Chris Sohovich as soon as possible. Attacking DUIs is what we do best.

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