Ray Hrdlicka – Host – Attorneys.Media
“Before the arrest, any of that conversation is still usable with the police officer in their report. Is that correct?”
Kirk Tarman– DUI Criminal Defense Attorney – San Bernardino County, CA
“For sure, most of that is the basis of their case, that…that is showing impairment at or near the time of driving.”
Ray Hrdlicka – Host – Attorneys.Media
“What point in the arrest does the Miranda have to occur where everybody realizes.. wait a minute now, I must exert my rights, get an attorney, refuse to speak, etc., etc., if they choose that way.”
Kirk Tarman– DUI Criminal Defense Attorney – San Bernardino County, CA
“Well, look, Miranda is not as useful as it seems as in the movies. It’s used, generally speaking, to suppress incriminating statements. It’s not to…used to suppress any type of physical perspective or perception by the police officer, etc. So, and the weird thing is, it says within the statue that a driver does not have a right to have an attorney present when deciding which evidentiary tests they’re going to take. Is that crazy?
Yeah, because they don’t want…they don’t want these people having access to an attorney. They don’t want them to make smart choices. They want them to be stunned by the situation, to comply and be cooperative with the law enforcement officer, and therefore basically making their case that this person is impaired. If someone were to basically invoke their right to remain silent…
‘Where are you coming from?’
‘Officer, here’s my driver’s license, here’s my…here’s, my insurance. I’m not going to be making any statements. You know, if I got a vehicle code violation, get, give me the ticket. I want to be on my way as quickly as possible.’
But,‘hey, I’m just trying to be nice’.
‘Officer, I’m not going to be making any statements. Can I have my ticket? I’d like to go.’
‘Well, you’re not being very friendly. Where are you coming from?’
You know…
‘Officer, I’m not going to be making statements.’
‘Well, I smell alcohol. Have you been drinking?’
‘Officer, I’m not going to be making any statements. I told you that before.’
‘Well, step out of the car.’
‘Ok’.
You comply with them. You cooperate with him.
‘Look at my pen.’
‘Officer, I’m not going to comply with any field sobriety tests.’
‘All right. I’m going to arrest you.’
‘Okay, do what you gotta do.’
And when that is really at the point of arrest, which is a little bit subjective, it’s when Miranda would truly kick in. You’re supposed to, at that point, anything you say, can and be…can be used against you when you’ve been arrested. And that’s where an attorney can suppress. If you were, after that point, to say,
‘yeah, I drank six beers an hour and a half ago’,
potentially after the arrest, you could suppress that if they weren’t Mirandized. But… but, then the cop probably won’t ask much, but say,
‘what… you understand you have to give a blood or breath test. Which one do you want to do?’
You know, you’re supposed to say,
‘I don’t want to do either.’
‘Well, you have to, under the law.’
‘Well, if I have to, Officer, I’ll do blood.’
And then maybe I got a little action on showing that you got that coerced out of you, you know, that you didn’t really voluntarily give up that 4th amendment right. And then they took the blood, they coerced it out of you because the police officer told you you had to. So again, invoking your right to remain silent. Miranda isn’t going to do a lot in regards to all the physical evidence they found, but it can keep you from having those statements about your drink pattern, where you’ve been. And anything like that can be suppressed if they haven’t Mirandized you, or you invoke your Miranda rights.”
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