Archive for June, 2015

Can DWI Evidence be Used if You Weren’t Mirandized?


Texas criminal defense attorneyWhen police pull you over, they may ask you questions like whether you have consumed any alcohol. A law enforcement officer may also ask you how much you’ve had to drink.

Many people pulled over by police incorrectly believe evidence obtained cannot be used against them if they weren’t given a Miranda warning before they answered questions. This is not necessarily true. While evidence collected in violation of your rights can’t be used against you in a drunk driving case, police aren’t required to read your rights every time you have an interaction.

It is important to determine when your rights actually were violated so you can make a compelling legal argument to keep illegally obtained evidence from being used. You should consult with an experienced DWI defense lawyer after you’ve been charged for help with the process.

When Must Police Mirandize You in DWI Cases?

You’ve probably seen police reading people their rights on TV. This is called Mirandizing, and involves delivering the Miranda warning i.e. telling you you have the right to remain silent and to call a lawyer. Police have to go through this recitation of your rights before a custodial interrogation or prosecutors won’t be able to use any statements you make during the interrogation.

When you are subject to a traffic stop, you could make an argument you are in custody. Custody is typically defined as subject to the common restrains of arrest and/or being in a situation where you do not feel free to leave the presence of officers. You can’t just drive away when police stop your car.

You could also make an argument you’re being interrogated if police ask you questions about whether you’ve had anything to drink. The answers to these questions could result in your arrest and prosecution, and anything you say can be used against you.

Despite this, the Supreme Court ruled in Berkemer v. McCarty there’s no Miranda warning required before police talk to you at a roadside stop because: “In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda.” If you are formally arrested for DWI, however, police must at this point give you a Miranda warning because you are being taken into custody. If police arrest you without reading your rights, you can petition to have evidence suppressed if it was collected during a subsequent interrogation. Evidence suppressed can’t be used to secure a conviction.

Prosecutors have the legal burden of proving drunk driving occurred beyond a reasonable doubt. There are times when evidence can be suppressed, like if you were pulled over without probable cause. An attorney can provide assistance determining if the Fourth Amendment was violated in your case. A failure of police to read your Miranda rights as soon as you’re stopped is not likely to be one of these situations where a constitutional argument will work to prevent evidence from being presented.