BUT THEY DIDN'T READ ME MY RIGHTS!

One Friday night, (we’ll call this person “Sam”) Sam got pulled over. It started out with the officer introducing himself and telling Sam that the officer pulled Sam over because Sam crossed over the center line. The officer asks Sam for their driver’s license and insurance card. Sam fumbles a bit with the glove box but produces an insurance card and Sam’s driver’s license. The officer then asks Sam, “Have you had anything to drink tonight?” Sam admits to having a few beers after work. Through the conversation, the officer asks Sam a bit more specifically about when Sam had those beers. It was “a few hours ago.”

This is a common scenario leading to a DWI conviction. Of course, the officer will then attempt some Field Sobriety Tests, which Sam will fail. (More on that in will appear in another blog post.) The officer will then place Sam under arrest for DWI.

Sam gets to the lawyer’s office and says, “they never read me my rights!” Sam seems to think this might save them from a conviction. But it won’t. Why is that?

These rights that police read are called Miranda Rights. They come from a famous case, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, (1966). This case determined that individuals who are being interrogated in police custody have certain rights, and notification of those rights is required before a statement made is admissible.

The problem comes with two necessary parts of this rule. The person must “be interrogated” and the person must also be “in custody.” Over the years, there has been a lot of confusion about what those two things means.

Interrogation has been defined, and continues to be defined by the basic principle in Innis v. Rhode Island, 446 U.S. 291, 64 L.Ed.2d 297 (1980). “We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id at 300.

Asking a driver if they have had anything to drink is not express questioning, but is merely investigatory. The same is true of asking a person for their identification. A question about how long ago the person consumed alcohol is getting closer to that line, but again, it is not considered likely to elicit an incriminating response. But even if it is considered to be likely to elicit an incriminating response, there is another part of the test that has to be applied.

There is no doubt that a person who is under arrest is in custody. But, in the scenario above, Sam was not yet arrested when the officer questioned them. That does not mean that Sam was not in custody. To be in custody a person’s freedom of movement was restrained to an extend that is associated with formal arrest. Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994), and New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626 (1984).

In the scenario above, Sam was then asked to perform Field Sobriety Tests. Sam was not handcuffed. But had Sam been handcuffed, it is probably not enough to mean Sam was “in custody.” See United States v. Bautista, 989 F.3d 698 (9th Cir. 2021). In this scenario, however, Sam had the ability to move, unrestrained, even though Sam was asked to do a few tasks termed Field Sobriety Tests.

Were Sam to argue that Sam’s statements about drinking alcohol prior to driving were inadmissible because they were not Mirandized, this argument would be extremely likely to fail. Sam was neither interrogated, nor was Sam in custody.