DUI Stops, the Fifth Amendment, and Miranda in CA

By otmseo on August 24, 2020


First off, the cops failure to read you your rights will not get a DUI case dismissed.

At DUI stops the fifth amendment and Miranda will possibly get your statements suppressed, if it is determined that you were in custody at the time the statements were made. This is unlikely in a DUI because of a US Supreme Court case called Berkemer v McCarty.

Berkemer v. McCarthy says that the questions a cop asks after a DUI stop are not part of a Custodial Interrogation.

The Berkemer case involved a stop where the cop asked 1 question: are you under the influence of anything?

The guy answered yes.

He got arrested.

The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions.  In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The Court held the subject was not under the belief that he couldn’t leave. The Court further held that in this case, the questions were not intrusive.

If you are arrested and questioned, you must invoke your right against self-incrimination unequivocally. If you say anything other than “I invoke my right against self-incrimination,” it will not be treated as an invocation. So when arrested and questioned say, “I invoke my right against self-incrimination.”

The Fifth Amendment does not relieve you of your obligation to take the post-arrest DUI chemical tests.

If you are stopped and questioned pre-arrest, the Berkemer decision says that you’re not under arrest so your Fifth Amendment right doesn’t apply.  I counsel that you should tell the cop, “Officer, am I free to go? If not, then I choose not to answer your questions.”  Any answers you give the cop will be used to build a case against you.  They are not trying to learn information so they can release you.  They are trying to get information to get a conviction.

The recent California Supreme Court case of People v Tom shows the importance of unequivocally invoking your Fifth Amendment right not to answer cops’ questions. In this case, there was a traffic fatality, the Defendant left the scene, later the cops came to his house.  They found him drinking.  They arrested him and had him sitting around for three hours. During that time he never inquired about the person who was killed. Of course, none of the cops informed him why he was arrested or that there was a fatality.  The Prosecutor commented on this in his closing argument. This is usually Griffin Error.

Prosecutors cannot comment on the Defendant’s post-arrest silence under Griffin. But the Tom court held that because the Defendant did not unequivocally invoke his right against Self-Incrimination the Prosecutor could comment about his silence

Merely remaining silent after being arrested will not be enough to invoke your right against Self-Incrimination.  It cannot be said often enough, at DUI stops the Fifth Amendment and Miranda require that you unequivocally invoke your right against self-incrimination.

If you’ve been arrested and you feel there’s an issue with something the cops say you say or with remaining silent, call me at 213-479-5322.

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