What if the Police didn't read me my Rights?

Before we get to that, you undoubtedly want to know if you are stuck with a Drunk Driving charge, or if there is way out of it. The only way to find out is to ask, and to investigate. Cases are “knocked out” because faults or flaws or problems with the evidence are discovered after investigation. No one is ever released from their overnight stay in Jail and told that the Arresting Officer screwed up, somewhere, and then advised to hire a good Lawyer.

There’s an irony here: Many times, it’s the person who has the least idea that something is wrong with the case against them who actually winds up with a case that can be successfully challenged somehow. In a DUI case, every single facet of every step of the case must be critically examined. Very few grounds to successfully challenge the evidence in a Drunk Driving case are obvious. These things are only found as the result of careful, expert evaluation.

Very often, people arrested for a Drunk Driving or other Traffic Stop cases call and hope that the fact that the police didn’t read their Miranda rights can result in their case being dismissed. Miranda rights are the ones you hear all the time on TV and in the Movies.

These need to be distinguished from your chemical breath test rights, known as your Implied Consent Rights, which should have been read, either by you or the Police Officer, prior to your taking (or refusing to take) the breath test at the Police Station.

Remember the first two sentences of your Miranda rights: You have the right to remain silent. Anything you say can and will be used against you in a Court of Law.

In most cases, even if the police did not read you your Miranda rights, I’m afraid it doesn’t matter. Rather than give you the long, lawyer talk version, let’s put it this way: If you are pulled over for weaving, then arrested for drunk driving, it is unlikely that the police have any intention of using anything you said against you anyway. Drunk Driving cases are won or lost on evidence of driving while under the influence, meaning breath and/or blood evidence, assuming that such evidence is solid, and not on what the driver says. Your breath or blood test results are the most persuasive evidence the Police and Prosecutor will use against you.

In the same way, Suspended License cases are very similar. If you are pulled over driving and your license was suspended (whether you knew it or not), nothing you say (or don’t say, for that matter) is going to change that. Even if you admit that you knew your license was Suspended when you were driving, the police will have no need to include that in the case against you.

You can fill a small library with all the legal cases and discussion about those two lines, but the one legal distinction that most people don’t know about is that your rights don’t apply until you are arrested. That means, in very simple terms, that all the questioning leading up to your arrest, in most cases, is informational, and while you aren’t under any legal obligation to say anything, your rights against self-incrimination don’t even start until the police actually “Arrest” you.

For that matter, you could fill another small library with the legal cases and discussion about what an “Arrest” is, but for our purposes, it generally means those rights don’t start running until after you have blown (or refused to blow) into the portable breathalyzer in the back of the police car and the officer has decided you’re under arrest and going to the police station.

Once at the Police Station, there is a very certain, specific protocol that the Police are required to follow with you. You are required to have been observed for at least 15 minutes to make sure you didn’t have or put anything in your mouth, or that you did not regurgitate (throw up). Likewise, the Police are required to either see that you read, or read to you, your chemical breath test, or Implied Consent Rights.

Even if this did not happen, it is not absolutely fatal to the Prosecutor’s case against you. According to a 2006 ruling of the Michigan Supreme Court, automatic and outright dismissal of Drunk Driving Charges for the Police Officer’s failure to advise you of your Implied Consent Rights is no longer allowed. Instead (and this can get rather complicated), the significance of that failure is an issue for the Jury (or Judge, in a Bench Trial) to decide should you press the matter to Trial.

>> Next: What if I Refused to take the Breath Test?

Contact Us (586) 465-1980
Contact Us (586) 465-1980