When it comes to DUI's in Los Angeles and across California, this is one of the biggest fallacies or confusions that people have, is that they must be read their Miranda Right or somehow the DUI is no good.

That's one of the first things people tell me when they come into my office. They didn't read me my Miranda Rights – do you believe that? Somehow, they think that can now be used to win their DUI case. The bottom line is they do not have to read you your Miranda Rights ever and if they don't, it usually doesn't make much difference in a DUI case.

Police Don' Have To Read Miranda To Make DUI Arrest

The evidence they're going to use in a DUI case is your breath or blood result to be able to prove whether or not that is a .08 or greater. They don't' need you to say anything to them in order for them to typically prosecute you for a DUI.

You're either a .08 or greater or you're not. Of course, if there's more to it than that – how you're driving, how you do on a field sobriety test and a host of other factors are going to control what happens in your DUI case, but the only reason they have to read somebody their Miranda Rights is if they want to use a statement against them. So, if they don't want to use someone's statement against them, then they don't have to read them the Miranda Rights.

In different criminal cases other than DUI's, the police do read the Miranda Rights because a lot of times if the person is in custody and they want to take a statement. So, if you don't read somebody their Miranda Rights and they're in custody and you're asking them direct questions, or you're saying things that would trigger another person to incriminate themselves or give incriminating information, then you have to read them their Miranda Rights.

If you don't read the Miranda Rights and you're in law enforcement, then any statement that the person makes, is not going to be able to be used against them. You can still prosecute the person, you just can't use their statements.

That does become applicable sometimes depending on what the circumstances are. For example, let's say someone gets into a DUI crash and they leave their car there and they walk away, and they get miles away from the scene of the accident and the police find them. The police are going to start asking you questions.

When did you crash? Were you the one who crashed? Were you driving? If they can pinpoint the answers to those questions, then they're going to be able to get him for the DUI, but I've won a lot of cases when the person is not there. They're not driving.

You have to be driving for it to be a DUI, but of course, if the police can prove that you were driving at some point that wasn't too far away and you crashed, they can still get you for the DUI.

But if they arrest you in that example that I gave, and they start asking you questions and the don't give you your Miranda Rights, then your attorney has an argument that they're not going to be able to use the answers to those questions because they didn't read the Miranda Rights. That just doesn't happen very often in the standard DUI. The police arrest the person and they've got him right there and they're able to prosecute him for the DUI.

Circumstances Where a Case can be Dismissed

The answer to this question is yes. There absolutely are circumstances where if they don't read the Miranda Rights they're not going to be able to get the person for a crime. It just doesn't happen very often.

If they need the person's statement in order to convict them for the DUI and the person was in custody and they were being asked direct questions that could incriminate them, or the police were doing certain things to get them to make incriminating statements.

The fact the Miranda Rights were not given, the person made an incriminating statement, then the defense can file a motion and argue that that statement should be allowed in against them and if the prosecutors need that statement to prove the case to tie in the rest of the evidence and that statement is taken away from them, then they're going to have to dismiss the case.

Unfortunately, though there's just been an erosion of Miranda since it came into being. The courts have just cut it to pieces. I do Miranda hearings all the time. Basically, what you do is you have to get the police officer in there and the defense attorney is entitled to cross-examine him. What are the circumstances? Was the person in custody?

You were asking him questions. It brings up that scenario where the police caught a person who they suspected had used a shotgun to kill somebody and they needed that somebody in order to prove so they could get the ballistics and obviously, if the person admitted whether the shotgun was because they couldn't find it after searching their house.

They'd be able to convict them of the crime, and they had the person in the back of the car – and again I'm paraphrases here on the case – but they said to the guy, hey it sure would be said if some little kid got ahold of that gun and killed themselves, and the police say a bunch of other stuff and the guy feels bad, so he gives the location of the gun and then he's prosecuted for it.

In that circumstance, even though they're not asking direct questions – hey, where did you put the gun – they're saying things that are designed to get him to incriminate himself. So, that's a circumstance where you could say that they improperly got a statement from him.

Miranda Rights and DUI Cases are Normally Irrelevant

They didn't read him the Miranda Rights – and you can get the case overturned. Again, those situations just don't come up that often, so usually the Miranda Rights, as they relate to DUI cases is pretty much irrelevant. There are circumstances where they do apply.

If you think you've got a case based on what I just said, or you can either damage the case or get it completely dismissed because they're relying heavily on your statements and they didn't give you your Miranda Rights, then obviously give me a call and we can sit down and talk about it.

Another way the police get out of reading people their Miranda Rights associated with a DUI is they say listen, the person wasn't in custody. I just pulled him over. I wanted to talk to them. They had committed a traffic violation and so I was just asking them simple questions and I could smell the alcohol on their breath.

They admitted that they had five drinks, so a lot of times they can get around the Miranda warnings by saying the person was not in custody yet. They were just detained. I was just talking to him. I was just conducting an investigator.