Miranda warnings are those warnings on TV that you've heard police read to defendants a hundred times: "You have the right to remain silent. Anything you say or do can be used against you in a court of law. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning. If you can't afford an attorney, one will be appointed for you. If you decide to answer any questions, you have the right to stop answering at any time. Do you understand and know your rights as I've explained them to you?"
Police are required to read Miranda warnings to suspects before they undergo what is referred to as a “custodial interrogation.” What you and I might think of as a “custodial interrogation” is not at all what courts, prosecutors, and police officers think of as a custodial interrogation. You can be “temporarily detained” without being in custody. For example, if police stop you at a checkpoint and direct you to pull over to the side of the road, you have been detained. You are not in custody, and therefore, when the police officer approaches your car to ask for your license and registration, you are not undergoing a custodial interrogation and, according to the case law, you are not yet entitled to be read your Miranda warnings.
You may say to yourself, "Well, if a police officer pulls me over and starts asking me questions, I'm in that officer’s custody and control because I am not free to drive away from the police officer." You are half correct. If a police officer pulls you over and starts asking you questions, you are being detained, and you are not allowed to leave voluntarily. However, you are also not in that police officer's custody, at least in the eyes of the law. And so, until you are in custody and being interrogated, he or she doesn't have to read you your Miranda warnings. Don't try to understand it. It makes little sense.
The line between questioning during a temporary detention and a custodial interrogation is not clearly marked. Attorneys and judges argue about where that line is every single day.
What we are really arguing about is whether a defendant’s incriminating statement is going to be used against that person, even though it was extracted by law enforcement while the defendant was unrepresented by counsel. You have the right to remain silent. You have the right to an attorney. If you don’t know that you have that right, you might understandably think that you need to answer the questions being asked by the police officer with the bullet-proof vest and hand on a Glock .45.
If police extract an incriminating statement (a confession) from you before you are read your Miranda warnings, your lawyer can and should try to keep that statement from being entered into evidence at trial. The question will be whether you volunteered that statement, or whether it was made during a custodial interrogation. If it was voluntary, it can be introduced as evidence into court. If it was made during a custodial interrogation and you had not been read your Miranda warnings, then the statement is inadmissible. (Click here for more information on preclusion and suppression.)
As you can imagine, there are many, many disagreements between defense attorneys and prosecutors over whether confessions are admissible into evidence. You may be surprised, however, to learn that 95% of persons charged with DWI volunteer a statement. It’s true. You have the right to remain silent. Please, for the love of all that is holy, exercise that right.