What to do if my daughter was not read the Miranda warning when she was arrested for DUI?

UPDATED: Jan 7, 2014

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What to do if my daughter was not read the Miranda warning when she was arrested for DUI?

Asked on January 7, 2014 under Criminal Law, Idaho


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

The suspect must be properly advised of their Miranda rights—namely, the Fifth Amendment right against compelled self incrimination (and, in furtherance of this right, the right to counsel while in custody). The Fifth Amendment right to counsel means that the suspect has the right to consult with an attorney before questioning begins and have an attorney present during the interrogation. The Fifth Amendment right against compelled self incrimination is the right to remain silent—the right to refuse to answer questions or to otherwise communicate information. Therefore, before any interrogation begins, the police must advise the suspect that:

  1. they have the right to remain silent;
  2. anything the suspect does say can and MAY be used against them;
  3. they have the right to have an attorney present before and during the questioning; and
  4. they have the right, if they cannot afford the services of an attorney, to have one appointed, at public expense and without cost to them, to represent them before and during the questioning.[42]

There is no precise language that must be used in advising a suspect of their Miranda rights.[43] The point is that whatever language is used the substance of the rights outlined above must be communicated to the suspect.[44] The suspect may be advised of their rights orally or in writing.[45]

The Supreme Court has resisted efforts to require officers to more fully advise suspects of their rights. For example, the police are not required to advise the suspect that they can stop the interrogation at any time, that the decision to exercise the right cannot be used against the suspect, or that they have a right to talk to a lawyer before being asked any questions. Nor have the courts required to explain the rights. For example, the standard Miranda right to counsel states You have a right to have an attorney present during the questioning. Police are not required to explain that this right is not merely a right to have a lawyer present while the suspect is being questioned. The right to counsel includes:

  • the right to talk to a lawyer before deciding whether to talk to police,
  • if the defendant decides to talk to the police, the right to consult with a lawyer before being interrogated,
  • the right to answer police only through an attorney.[46]

The duty to warn only arises when police officers conduct custodial interrogations. The Constitution does not require that a defendant be advised of the Miranda rights as part of the arrest procedure, or once officer has probable cause to arrest, or if the defendant has become a suspect of the focus of an investigation. Custody and interrogation are the events that trigger the duty to warn.


Simply advising the suspect of their rights does not fully comply with the Miranda rule. The suspect must also voluntarily waive their Miranda rights before questioning can proceed.[47] An express waiver is not necessary.[48] However, most law enforcement agencies use written waiver forms. These include questions designed to establish that the suspect expressly waived their rights. Typical waiver questions are

  1. "Do you understand each of these rights?" and
  2. "Understanding each of these rights, do you now wish to speak to the police without a lawyer being present?"

The waiver must be "knowing and intelligent" and it must be "voluntary". These are separate requirements. To satisfy the first requirement the state must show that the suspect generally understood their rights (right to remain silent and right to counsel) and the consequences of forgoing those rights (that anything they said could be used against them in court). To show that the waiver was "voluntary" the state must show that the decision to waive the rights was not the product of police coercion. If police coercion is shown or evident, then the court proceeds to determine the voluntariness of the waiver under the totality of circumstances test focusing on the personal characteristics of the accused and the particulars of the coercive nature of the police conduct. The ultimate issue is whether the coercive police conduct was sufficient to overcome the will of a person under the totality of the circumstances. As noted previously, courts traditionally focused on two categories of factors in making this determination: (1) the personal characteristics of the suspect and (2) the circumstances attendant to the waiver. However, the Supreme Court significantly altered the voluntariness standard in the case of Colorado v. Connelly.[49] In Connelly, the Court held that "Coercive police activity is a necessary predicate to a finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment."[50] The Court has applied this same standard of voluntariness in determining whether a waiver of a suspect's Fifth Amendment Miranda rights was voluntary. Thus, a waiver of Miranda rights is voluntary unless the defendant can show that their decision to waive their rights and speak to the police was the product of police misconduct and coercion that overcame the defendant's free will. After Connelly, the traditional totality of circumstances analysis is not even reached unless the defendant can first show such coercion by the police.[51] Under Connelly, a suspect's decisions need not be the product of rational deliberations.[52] In addition to showing that the waiver was "voluntary", the prosecution must also show that the waiver was "knowing" and "intelligent". Essentially this means the prosecution must prove that the suspect had a basic understanding of their rights and an appreciation of the consequences of foregoing those rights. The focus of the analysis is directly on the personal characteristics of the suspect. If the suspect was under the influence of alcohol or drugs, or suffered from an emotional or mental condition that substantially impaired their capacity to make rational decisions, the courts may well decide that the suspect's waiver was not knowing and intelligent.

A waiver must also be clear and unequivocal. An equivocal statement is ineffective as a waiver and the police may not proceed with the interrogation until the suspect's intentions are made clear. The requirement that a waiver be unequivocal must be distinguished from situations in which the suspect made an equivocal assertion of their Miranda rights after the interrogation began. Any post-waiver assertion of a suspect's Miranda rights must be clear and unequivocal.[53] Any ambiguity or equivocation will be ineffective. If the suspect's assertion is ambiguous, the interrogating officers are permitted to ask questions to clarify the suspect's intentions, although they are not required to.[54] In other words, if a suspect's assertion is ambiguous, the police may either attempt to clarify the suspect's intentions or they may simply ignore the ineffective assertion and continue with the interrogation.[55] The timing of the assertion is significant. Requesting an attorney prior to arrest is of no consequence because Miranda applies only to custodial interrogations. The police may simply ignore the request and continue with the questioning; however, the suspect is also free to leave.


If the defendant asserts his right to remain silent all interrogation must immediately stop and the police may not resume the interrogation unless the police have "scrupulously honored" the defendant's assertion and obtain a valid waiver before resuming the interrogation.[56] In determining whether the police "scrupulously honored" the assertion the courts apply a totality of the circumstances test. The most important factors are the length of time between termination of original interrogation and commencement of the second and a fresh set of Miranda warnings before resumption of interrogation.

The consequences of assertion of Fifth Amendment right to counsel are stricter.[57] The police must immediately cease all interrogation and the police cannot reinitiate interrogation unless counsel is present (merely consulting with counsel is insufficient) or the defendant of his own volition contacts the police.[58] If the defendant does reinitiate contact, a valid waiver must be obtained before interrogation may resume.

In Berghuis v. Thompkins, the Court ruled that a suspect must clearly and unambiguously assert their right to silence. Merely remaining silent in face of protracted questioning is insufficient to assert the right.


Assuming that the six factors are present, the Miranda rule would apply unless the prosecution can establish that the statement falls within an exception to the Miranda rule.[59] The three exceptions are (1) the routine booking question exception[60] (2) the jail house informant exception and (3) the public safety exception.[61] Arguably only the last is a true exception–the first two can better be viewed as consistent with the Miranda factors. For example, questions that are routinely asked as part of the administrative process of arrest and custodial commitment are not considered "interrogation" under Miranda because they are not intended or likely to produce incriminating responses. Nonetheless, all three circumstances are treated as exceptions to the rule. The jail house informant exception applies to situations where the suspect does not know that he is speaking to a state-agent; either a police officer posing as a fellow inmate, a cellmate working as an agent for the state or a family member or friend who has agreed to cooperate with the state in obtaining incriminating information.[62] The window of opportunity for the exception is small. Once the suspect is formally charged, the Sixth Amendment right to counsel would attach and surreptitious interrogation would be prohibited.[63] The public safety exception applies where circumstances present a clear and present danger to the public's safety and the officers have reason to believe that the suspect has information that can end the emergency.[64]

Consequences of violation[edit]

Assuming that a Miranda violation occurred—the six factors are present and no exception applies—the statement will be subject to suppression under the Miranda exclusionary rule.[65] That is, if the defendant objects or files a motion to suppress, the exclusionary rule would prohibit the prosecution from offering the statement as proof of guilt. However, the statement can be used to impeach the defendant's testimony.[66] Further, the fruit of the poisonous tree doctrine does not apply.[67] Since the fruit of the poisonous tree doctrine does not apply to Miranda violations, the exclusionary rule exceptions, attenuation, independent source and inevitable discovery, do not come into play. Therefore, derivative evidence would be fully admissible. For example, the police continue with a custodial interrogation after the suspect has asserted his right to silence. During his post-assertion statement the suspect tells the police the location of the gun he used in the murder. Following this information the police find the gun. Forensic testing identify the gun as the murder weapon and fingerprints lifted from the gun match the suspect's. The contents of the Miranda defective statement could not be offered by the prosecution as substantive evidence, but the gun itself and all related forensic evidence would not be subject to suppression.

Procedural requirements[edit]

Although the rules vary by jurisdiction, generally a person who wishes to contest the admissibility of evidence[68] on the grounds that it was obtained in violation of his constitutional rights[69] must comply with the following procedural requirements:

  1. The defendant must file a motion.[70]
  2. The motion must be in writing.[71]
  3. The motion must be filed before trial.[72]
  4. The motion must allege the factual and legal grounds on which the defendant seeks suppression of evidence.[73]
  5. The motion must be supported by affidavits or other documentary evidence.[74]
  6. The motion must be served on the state.[70]

Failure to comply with a procedural requirement may result in summary dismissal of the motion.[70] If the defendant meets the procedural requirement, the motion will normally be considered by the judge outside the presence of the jury. The judge hears evidence, determines the facts, makes conclusions of law and enters an order allowing or denying the motion.[75]

I suggest your daughter consult with a criminal defense attorney in her community. One can be found on attorneypages.com.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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