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In Miranda v. Arizona, the Supreme Court held that custodial interrogations have the potential to undermine the Fifth Amendment privilege against self-incrimination by possibly exposing a suspect to physical or psychological coercion. To guard against such coercion, the Court established a prophylactic procedural mechanism which requires that a suspect receives a warning before custodial interrogation commences. The Court held that unless the suspect is warned of his Fifth Amendment rights, any pretrial statements elicited from the suspect are inadmissible at trial.

Miranda Rights. Under Miranda, before questioning suspect in custody, law enforcement official must inform them, in some manner, that: (1) they have the right to remain silent; (2) their statement may be used against them at trial; (3) they have the right to the presence of an attorney during questioning; and (4) if they cannot afford an attorney, one will be appointed for them. No additional warnings are required. Warnings do not have to be given exactly as written in the Miranda opinion, but law enforcement officials must convey Miranda essential messages to the suspect, and procedures must be ‘at least as effective [as Miranda warnings] in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it.’

Miranda warnings must be given only when the subject is both in custody and about to be subjected to government interrogation. Custody is the deprivation of freedom of action in any significant way. Thus, a suspect is in custody if, under the totality of the circumstances, a reasonable person would not feel free to end the encounter and leave. The location of interrogation, although not dispositive, is a common factor courts consider in determining whether a suspect was in custody. Determinants during routine traffic stops, meeting with one’s probation officer, and execution of valid search warrants are not custodial if no other factors indicate the presence of a coercive atmosphere. The defendant bears the burden of proving custodial status.” 39 GEO. L.J. ANN. REV. CRIM. PROC. 179-185 (2010).

So what this is telling you is that in a criminal/motor vehicle matter you do not have to answer any questions. You can keep your mouth shut. Really, you can do this. If you say anything to the police officer, answering his questions, etc., you do so at your own risk – the risk of incrimination yourself. However, once the police place you in custody – depriving of your freedom in any significant way – they must give you the Miranda warnings. You can waive this and if you do, you do at your own risk and if you incriminate yourself then what you say can be used against you. The minute you “Lawyer Up” the police are required to stop interrogating you. As a practical matter, the police will try to get you to waive your Fifth Amendment privilege against self-incrimination. Just remember that you have the right to refuse to answer their questions regarding your case.

When the police stop you for a DUI you can from the outset be polite to the officer and then refuse to answer any questions regarding your case and even refuse to perform the Standard Field Sobriety Tests. This may not be a custodial interrogation but no matter what is the result and answers derived from your actions can be used to convict you – used against you – in a court of law. Nevertheless, no matter the stage of a criminal proceeding, you can refuse to answer questions and perform the SFSTs. It is like not wanting to talk to a friend – it is your choice. Once you talk and say something then your words and actions are out there for the interpretation and used against you.


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