In my post on what a person should and shouldn’t do when arrested on suspicion of driving under the influence, I emphasized the point that you should NEVER volunteer information. Some of the most damaging evidence against a DUI suspect comes from statements he or she makes to officers. Sometimes the statements are spontaneous and sometimes they are in response to questions. Many clients often proclaim that their case should be thrown out because they were never given their Miranda warnings. Unfortunately, this is but a small hurdle for the prosecution to leap.
We’ve all seen the movies and T.V. shows, so I won’t go into what the Miranda warnings are. While many might know what the Miranda warnings are, few know when they are supposed to be given. One of several requirements to cue the Miranda warnings is that the suspect be in custody. Custody occurs when the suspect is under the physical control of the officer. Custody also occurs when a reasonable person would feel he or she cannot leave. If pulled over on suspicion of DUI, certainly someone cannot simply end the stop and drive away. So are they in custody? If so, when are the officers supposed to give the Miranda warnings? Even though someone suspected of DUI cannot drive away from the stop and subsequent investigation, prosecutors routinely deem the stop a “preliminary investigation.” A preliminary investigation occurs before the suspect is placed in custody, thus not prompting the Miranda warnings. Probable cause that a DUI has occurred is required for an arrest, at which point Miranda warnings are required. Preliminary questions are used to determine if there is probable cause to arrest on suspicion of DUI. Keep in mind that probable cause probably already exists before questioning occurs via the blood shot eyes, smell of alcohol, and swerving vehicle. However, few officers will admit that they had probable cause before they began questioning the suspect. Do not give them any more ammo than they already have. If asked whether you have been drinking, simply answer, “I respectfully decline to answer any questions without the advice of my attorney.”
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