By 
“The policeman never read me my rights!” One of the most frequently asked questions by DUI attorneys. A fair question. A great question.
“Will my case be thrown out?” “Did the fact that the policeman did not read the rights mean that my arrest was illegal?” (These should be the real questions that the arrested person is reasonably thinking.)
What are Miranda’s main rights? Right to a lawyer. Right to remain silent.
What does it mean in California? Reading Miranda Rights is completely at the discretion of the police officer in DUI cases.
So why is reading one’s rights just an option? How is the reading of rights not a requirement?
The suspect does not have the right to speak to an attorney before deciding whether to conduct a chemical test if arrested on suspicion of drunk driving.
California law includes “Implied Consent.” This means that if you drive in the state and are legally arrested for DUI, you (implicitly) consent to a chemical test, usually of your blood or breath.
Following a DUI arrest, the police must inform the DUI suspect of the California requirement for a chemical (blood or breath) test. The chemical test warning form used for this purpose states:
1. State law requires you to submit to a PAS (DUI Probation) or other chemical test to determine the alcohol and / or drug content of your blood.
2. a. Because you are under the influence of alcohol, you have the option of taking a blood or breath test.
B. Because I believe you are under the influence of alcohol or drugs, you have the option of having your blood, breath, or urine tested.
vs. (where applicable) Since the blood and breath test is not available, you are considered to have consented to the chemical test of your urine.
D. (where applicable) Since you need medical treatment, your choice is limited to __________ tests, the only tests available at ________________________.
3. If you refuse to submit or do not complete an exam, your driving privilege will be suspended for 1 year or revoked for 2 or 3 years. A second offense within 10 years of a separate driving under the influence violation, including a charge reduced to reckless driving, vehicular manslaughter, or a violation of CVC section 23140, or a separate administrative determination that you were driving with alcohol in the blood. content of 0.01 percent or more while under the age of 21, or .04 while operating a commercial vehicle, or a blood alcohol content of .08 percent or more at any age, or refusal of a test will result in a revocation of 2 years. Three or more offenses within 10 years of any combination of the above violations, convictions, or separate administrative determinations will result in a 3-year revocation.
4. Refusal or failure to complete a test can be used against you in court. Refusal or failure to complete a test will also result in a fine and / or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to speak to a lawyer or have a lawyer present before indicating whether to take a test, before deciding what test to take, or during the test.
6. If you cannot, or say you cannot, complete the exam of your choice, you must submit and complete the remaining exam.
As shown above, no. 5 indicates that the suspect does not have the right to an attorney before deciding whether to perform a chemical test.
Miranda rights are not normally granted in DUI cases. Why not?
Because when the cop confronts the driver, the cop is just conducting an investigation. At the investigation stage, the police officer is not required to tell the person their right to remain silent or their right to a lawyer.
The police officer does not want the person to keep quiet. The cop wants the person to “spill their guts,” to admit a number of things the cop can write on a DUI arrest report and use to try to convict the person.
What happens in most DUI cases is that the police start asking all kinds of questions designed to gather information to convict. This is done before handcuffing and arresting the person.
Because the person has not been arrested, there is not even a legal obligation to advise one of their “rights”.
Unfortunately for the person, he or she answers the questions most of the time, although he or she does not have to answer any questions from the police officer.
So what happens? Well, once the decision to arrest is made, the person is handcuffed. Then, and only then, does the law require the police to inform a person of their rights.
The problem is that, when the handcuffs are put on, the policeman has already gotten answers to the policeman’s questions.
Those responses helped the police officer decide whether to arrest for DUI. In fact, the police officer does not normally need to gather more statements to include in his report to aid in the prosecution, since the police officer practically has everything he needs to arrest at that point.
So, after handcuffs, most cops avoid questioning. Handcuffs mean custody and the police are not supposed to ask unless the suspect is “watched.” But by then usually you don’t need to ask, so you don’t need Mirandize.
The cop never takes the suspect to the police station, in a room, under the lights, looking at the suspect and asking, “So, YOU ARE DUI, right?”
So the bottom line is that in DUI situations, a suspect does not have the right to speak to an attorney before deciding whether or not to perform the required blood or breath test. The driver gives “implied consent” when applying for a driver’s license.
Compared to other criminal cases, one’s right to remain silent and the right to an attorney are generally not a determining factor in a DUI case.
There is a possible exception, as is the case with most laws. If the police officer decides to ask questions and cross-examine, those suspicious statements made once in custody may not be legally used against the defendant at the DUI trial.
In that case, the court would suppress the statements so that the prosecutor could not use them at trial. So if the policeman did not read the suspect his rights, the policeman cannot use statements like this at trial, for example, during the trip to the station, the policeman asks: “How drunk were you?” The person responds, “I was pretty drunk.” Those drunk statements would be suppressed and inadmissible in court.