Florida Criminal Defense and DUI Defense Blog

24Oct, 18

The Truth about Miranda Warnings

TV has gotten Miranda wrong for over fifty years. On television, when a police officer makes an arrest and fails to read the arrested person his rights, viewers are led to believe that the arrest is illegal, and the person cannot be prosecuted. This is not even close to being correct. Police questioning of a person in custody without Miranda warnings means that the questioning is illegal, not the arrest.

What are the “Miranda Rights”?

In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. As a result of Miranda, anyone in police custody must be told four things before being questioned:

  1. You have the right to remain silent.
  2. Anything you say can and will be used against you in a court of law.
  3. You have the right to an attorney.
  4. If you cannot afford an attorney, one will be appointed for you.

What if the Police Fail to Advise Me of My Miranda Rights?

When police officers question a suspect in custody without first giving the Miranda warning, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. Any evidence discovered as a result of that statement or confession will likely also be thrown out of the case.

What happens after I invoke my Miranda rights? 

Once a person invokes his or her Miranda rights, that is, the right to remain silent and/or the right to consult with an attorney, the police must stop questioning that person. A resumption of questioning is only permissible once the suspect’s counsel has been made available to him, or he himself initiates further communication, exchanges, or conversations with the police.

If the police obtain incriminating statements from a suspect in violation of this rule, the statements would be suppressed, or excluded from evidence.

The prosecution cannot legally use, or present in court, evidence obtained by the police through their own illegal activity.

Your DUI Lawyer will tell you to remain silent – it is your right!

Your speech and other clues the police use to justify your arrest.

The Fifth Amendment to the United States Constitution provides that you have the absolute right to remain silent and not incriminate yourself during your arrest and booking process.

This right applies to everyone accused of any crime in Florida, and it is true even if you are an alien or an illegal alien.

criminal defense advise on miranda rightsOnce the arresting officer has read you your Miranda warnings, this silence on your part cannot be used against you in court.

This means that the officer cannot testify in court that you refused to answer his or her questions. You need to tell the officer(s) clearly and unambiguously that you have made the choice to remain silent.

This does not mean that you should not be appropriately polite with the law enforcement officers, using such terms as “please,” and “thank you”.

Beyond providing the police identification information such as your name, address and showing them your driver’s license, you do not have to answer any questions relating to when, where, how much, and even whether you had been drinking, or why you were arrested.

Police Rights Versus Your Rights

If your stop was based on the officer’s “reasonable suspicion”, the police officer has the right to expect you to identify yourself, and to have you produce your driver’s license.

Police officers receive training, including mock or rehearsed trial practice, during which they must recite sufficient information to support their decision to arrest a suspect.

This type of training has led to many police officers spouting off a litany of these “common” symptoms of apparent intoxication, whether the officer actually saw those symptoms or not.

By doing so, the officer can help the Prosecutor survive a pre-trial motion to suppress evidence gathered by the police following the arrest decision, due to lack of clear evidence of impairment prior to the arrest.

One handbook for prosecutors and police officer includes: the smell of alcohol, impaired fine or gross motor (muscle) control; slurred speech; bloodshot eyes; erratic driving; impaired memory; impaired judgment and disheveled clothing among others.

Remember that an officer WANTS to hear your speech patterns to determine if your speech is slurred, thick-tongued, disorganized or otherwise “impaired” sounding. Certain drugs will cause thick-tongued or very slow, halting speech patterns.

Help Your DUI Defense: Remain Silent, but Cooperate

When an officer approaches your vehicle’s window, after asking for your license and possibly other documents, a question from the officer will usually start off the encounter.

“Sir, do you know how fast you were going?” or “Is there some reason that you were not able to stay in your lane back there?” or “Miss, I clocked you with laser going 78 in a 45 miles per hour zone. Are you on your way to an emergency or something?”

The content of your answer is relatively unimportant to the officer.

The manner of speech is what is being observed.

Unfortunately, even officers with extensive training can be misled by what they hear.

A large number of officers believe they can predict how much alcohol you have in your system through listening to your speech patterns.

Engaging in lengthy excuses does nothing to improve the chances that you will be allowed to leave the scene, if the smell of alcohol or of contraband drugs is present.

If the officer smells or suspects that he or she smells anything that might impair you, the next step is usually to ask you to step out of the vehicle.

Each part of this “exiting of the vehicle” maneuver will be noted by the officer in detail later, from how quickly you exit, whether you use the side or frame of the car to assist your exit, whether you fumble with items in your hands, such as keys or wallet, whether you drop anything, how you balance yourself or possibly sway, once you get out—anything and everything.

If the person is crying, belligerent, pleading to be let go or similar behavior that might possibly be associated with an impaired individual, the officer will note it in the report that he or she fills out later.

Ask a Criminal Defense Attorney Michael Kessler About Your Miranda Rights

If you believe that your Miranda rights have been violated, this can have a significant impact on your case and may even lead to a dismissal of any charges against you. That’s why it’s crucial to have a strong criminal defense lawyer in your corner. If you have important questions about criminal law or need representation, get started today by calling experienced criminal defense attorney Michael Kessler.

If you believe that you are the victim of an illegal police interrogation, you should contact our office, so that you may be protected.

Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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