Monder Law Group - News
They Say Silence is Golden, But How Do I Exercise this Right?
Question: What are some of the mistakes people make when being stopped, investigated, or arrested for DUI? Earlier you mentioned some mistakes individuals can make or misconceptions people have when answering questions to police officers?
— The biggest mistake people make is giving too much information to the police officers. Law enforcement officers, whether it’s SDPD, San Diego County Sheriff, or California Highway Patrol—are all looking to get as much information from you as possible when you’re stopped for a DUI. They want to know where you’re coming from, where you’re going, who you were with, what you had to drink, when you had your last drink. People don’t know what to do, they want to cooperate, they don’t want any more trouble, they want to be honest, and they give too much information to the police officers. The officers aren’t asking this because they’re curious or genuinely concerned for you—they are asking this to write it all down—to build a case against you.
From the very moment you are stopped, they are working on a DUI. Every question they ask is to build their case and make their case as strong as possible. They are asking questions to fill out their police report—and each report is designed to have a solid case (if fully completed). One of the mistakes we often see is people giving too much information when talking to the police officers.
Remember: YOU HAVE THE RIGHT TO REMAIN SILENT
Photo Credit: Paint the Moon
Legal Background: The right to remain silent originates in the Fifth Amendment of the United States Constitution, which grants, “No person…shall be compelled in any criminal case to be a witness against himself” For many years the interpretation of how this applied to U.S. citizens was confusing and a little murky, until the seminal United States Supreme Court case from 1966, Miranda v. Arizona. This is where the Miranda Warning that we know and love originated. The court in Miranda didn’t set forth an exact wording for these rights. But it held that you must be advised of your Fifth Amendment right to remain free from self-incrimination.
Question: But what if I have an alibi?
— First of all—good for you! But even so, you still don’t have to tell the police officers anything. California courts have long held that, “the defendant has a Constitutional right to remain silent and to not discuss his alibi or defense with the prosecutor or the police” (People v. Lindsey (1998) 205 Cal.App.3d 112 at 117). The courts have gone so far as to say that even disclosing of an alibi to the police officers would be violating the right to remain silent.
Tips to Keep in Mind:
- If you ask for a lawyer, the police are supposed to stop questioning you.
- In order for your right to remain silent to apply, you have to tell the police that you want to remain silent. This means you cannot simply remain silent in order to be protected by the Fifth Amendment. You have to assert that right. That could be a Catch-22 – in order to assert your right to remain silent you might have to say it, and thus not be silent.
- It’s possible that your silence will be used against you in court.
Even if the police don’t read you the Miranda warning, it does not invalidate your arrest or mean that your case is thrown out. Despite common misconceptions – largely misrepresented by television shows and movies — there is no blanket legal requirement for police officers to read Miranda rights during a California DUI arrest.
Miranda rights – you have the right to remain silent, etc. must only be read when:
- you are in custody (arrested), AND
- you are being interrogated.
Even then, the interrogation must consist of questions designed to elicit incriminating responses.
- Examples of such questions include:
- Were you drinking?
- How much did you drink?
- Did you take any medications or other drugs?
- The police are NOT obligated to read you Miranda rights when:
- they are still conducting a DUI investigation (that is, after you are pulled over, but before you are arrested), or
- they have placed you in custody, but are not interrogating you.
- You can also invoke the right to remain silent at trial.
Take Home Treat: Cut out and print this DUI paper. It will inform the police officer all of the rights you wish you invoke, the relevant laws and statutes for California that give you those rights, and lets the officers know that you will be cooperative.
Flyer provided by: fairdui.org
