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Applying Miranda in California


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11/17/2008
Anders Johnson
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When you are stopped by an officer, and he or she begins to question you about the amount of alcohol you have been drinking, does the officer need to read you your rights?  It is an often misunderstood aspect of Miranda that the officer needs to read your Miranda rights the moment the officer starts to question you.

Miranda rights, which inform a person of the right to remain silent, the right to an attorney, and notificaiton that anything that you say can be used against you in trial, are only required once a person is in custody, and not free to leave.  The failure of an officer to read a suspect those rights can result in all statements made during custody to be suppressed at a trial.

However, a person stopped on the road and initially questioned by an officer, is not in custody.  While one could make an argument that you are not free to leave, and technically in custody, the courts in California and elsewhere have determined that in mosts cases, the statements you make prior to arrest are admissible.

So what do you do?  You have a right to say nothing when you are stopped.  However, the problem with this is that if you are not intoxicated, you will be arrested anyway.  It is a conundrum that besets everyone when the officer turns his siren on.  If you ARE intoxicated, and know it, silence would be golden.  Many cases in California and the Bay area that I have seen involve statements made which clearly indicate intoxication.  And these statements are admissible.  Take the arrest, and let your attorney work on fighting the breath or blood test and the field sobriety tests, versus the statements you wish you had never made.



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