Arrested for Drunk Driving but the police never read you your Miranda rights?

One of the most common misconceptions in criminal law and procedure is the significance of a police failure to read Miranda rights — the right to remain silent, and right to an attorney — to a suspect or someone who was arrested. Many people believe that if they are arrested for a drunk driving (DWI or DUI) offense (or drug offense, or any other criminal offense), and the arresting officer never reads the defendant his Miranda rights, that the case must be thrown out. Unfortunately this is not the case.

In fact, the effect of an officer’s failure to read Miranda rights to a suspect in the course of a drunk driving arrest is very limited. Specifically, if you are arrested for a DWI and you are not read your Miranda rights, the only effect this will have on your case is that any statements you made while in custody, in response to interrogation, will not be admissible as evidence against you in the state’s case-in-chief (though it may be admissible as impeachment evidence in rebuttal).

In order for Miranda to apply one needs to two factors (1) custody and (2) interrogation.  Just being pulled over by the side of the road doesn’t meet the legal burden for being “in custody.”  So it’s always safer not to answer questions that could be incriminating.  You are not required to answer questions – that’s the crux of the Miranda right.

The legal effect of Miranda’s guarantee is just limited to statements made by a defendant, and is further limited only to statements made by a defendant after he or she is placed into custody, and further, only to statements made in response to questions by state officials which are designed to elicit an incriminating response.

As a result, if you are arrested for a DWI in Raleigh or elsewhere in North Carolina and you’re never read your rights, the effect on your case is likely to be non-existent. In most cases in North Carolina, the most damning statements made by individuals suspected of drunk driving are made in the first few minutes of a traffic stop, well before being placed into custody, which means those statements are not protected by Miranda at all. Miranda will do nothing to prevent your breathalyzer (BAC) result from coming in to evidence, nor will it limit the State’s ability to introduce the officer’s testimony of his observations of what he will claim were visible signs of impairment.

If you’re stopped by police on suspicion of drunk driving or anything else, you should respectfully decline to answer any questions. It is very important to be both polite and respectful when declining to answer questions.  If you’re asked if you’ve been drinking, don’t say yes or no. Just say you would prefer not to answer any questions. If you’re asked where you’ve been, you certainly shouldn’t say you just came from a bar or a restaurant. Just repeat that you would prefer not to answer any questions.

Miranda may not help you much in a DWI stop, but knowing your right to remain silent in advance and exercising that right may be the difference between a Guilty and a Not Guilty — or a probable cause finding or lack thereof — when your case goes to trial.

Raleigh DWI lawyer Wiley Nickel is a criminal defense attorney in Raleigh, North Carolina (Wake County) the Law Offices of Wiley Nickel represents individuals charged with DWIs and misdemeanors. Contact us for a free initial consultation at (919) 585-1486.


Wiley Nickel

Wiley Nickel lives and works in Cary, North Carolina. In 1998, he graduated from Tulane University with a major in Political Science and a minor in History. After college Wiley went to work for Al Gore and travelled with the Vice President as part of his national advance staff. Following the Gore campaign he earned his law degree from the Pepperdine University School of Law in 2005. While in law school Wiley worked as a law clerk in the Ventura County District Attorney’s Office where he gained valuable criminal trial experience before taking and passing the California bar exam. His first job out of law school was for the Merced County District Attorney’s Office where he worked as a Deputy District Attorney with a focus on prosecuting DWI offenders. Wiley later joined the Law Offices of Joseph Uremovic where he focused on civil litigation and family law. When the opportunity came to join the Obama campaign in 2008 Wiley jumped at the chance. He spent three years travelling with President Obama as a member of his national advance team. In 2011 Wiley left his work for the White House to return to the practice of law. Wiley devotes the majority of his practice to the areas of criminal law, family law, traffic tickets and DMV issues. The Law Offices of Wiley Nickel was started with the goal of providing the best representation possible for all of his clients. Experienced, Compassionate, Aggressive Criminal Defense While defense attorney Wiley Nickel works as the primary attorney for all of his cases, he does have an associate attorney, a team of investigators, forensic consultants, and support staff to call on to help achieve the best possible result in every case. He limits his case load so that he can focus on providing the best possible legal defense to all of his clients. Every case is a top priority and the goal is to have your case dismissed with a focus on being able to expunge your charges at the end of the process. When he is not working, Wiley is an avid family man, distance runner and golfer. He loves North Carolina college sports and is hoping this is the year for Cam Newton and the Carolina Panthers. Wiley is licensed to practice law in North Carolina and California.