Everyone seems to have the vague notion that when police arrest someone they are supposed to read the person his or her rights.   On television and in the movies, the police arrest a guy and then proceed to read him his rights:  “You have a right to remain silent, anything you say can and will be used against you,” etc.   So people get confused when they are arrested and the police don’t read them their rights.   They think their rights were violated.   Sometimes they are right and sometimes they are wrong.

Police read people their rights when they arrest them because of the United States Supreme Court case, Miranda v. Arizona, 384 U.S. 436 (1966).   In Miranda, the Supreme Court decided that when a person is placed in police custody, before any questioning takes place the person must be warned of the right to remain silent, that anything the person says may be used as evidence against him or her, and that the person has a right to the presence of an attorney during questioning, which attorney will be furnished at government expense if the person cannot afford to pay for one.   The Miranda Court also declared that nothing a person says in response to police questioning while in custody may be used against the person unless he or she first waives Miranda rights and chooses to speak.   So how is it that police sometimes stop and confront a person,  ask him or her questions, then get to use the responses against the person, all without ever reading Miranda rights?

Notice that Miranda rights don’t come into play unless the person is subjected to “custodial interrogation,” which means that the person is:  (1) in police custody, and (2) subjected to police interrogation.   Being in police custody means being under formal arrest or the functional equivalent of formal arrest.   Typically, when a police officer stops a person on the roadside the person is not considered to be in custody/under arrest unless and until the officer places handcuffs on the person and/or restricts the person’s movements by restraining him or her in a police car.    In a typical OUI case, the police ask lots of questions before they ever make the formal arrest.   Answers to those questions are fair game without waiver of Miranda rights because, although the answers result from interrogation, they are not the result of “custodial interrogation.”  The police get to use all of those pre-arrest responses against the person whether they read Miranda warnings after arrest or not.

In a typical OUI case, the bulk of the evidence has already been gathered by the time the arrest occurs.   Field sobriety tests have been completed. Questions have already been asked about whether the person has been drinking, how much, how long ago, whether the person is taking any prescribed or unprescribed drugs, whether  the person feels any effect from any alchohol or drugs consumed, etc.   The only other major piece of evidence for police to gather is a test result for alcohol level or the fact that the person will not submit to a test to determine alcohol or drug level in the face of implied consent warnings.  Police often don’t bother to read Miranda warnings to people they arrest for OUI because they don’t intend to subject them to custodial interrogation.   In those cases, if the police ask questions about the person’s drink history or try to elicit other damaging information from the person after the roadside arrest takes place, they are not allowed to use the replies to their questions (or provocative remarks) against the person as direct evidence at trial.   Note that they can’t use the statements as direct evidence, which means that unless a court deems the un-Mirandaed statements involuntary, they will still be able to use them to impeach the person if the person takes the stand at trial and contradicts what he or she told police while in custody.

If all of this seems a little murky, it is.   Sorting through what statements are admissible and what statements aren’t admissible at trial, and for what purpose, requires an understanding of the controlling case law and a careful sifting of the facts.  In many cases, the statements that a person makes to police constitute almost all of the evidence the state has against the person.   In such cases, a violation of Miranda rights can make the difference between being convicted of a crime or not.   In other cases, such as a typical OUI case, a Miranda violation might or might not play a large role, depending on what other evidence was legitimately gathered.   People should understand, though, that there are many circumstances in which a police officer can question them and use their responses against them without Miranda rights ever coming into play.   Sometimes police officers or detectives will read Miranda warnings to a person even though it does not appear that the person is in the functional equivalent of arrest, just to eliminate any argument later on that the person was in custody and therefore should have been read Miranda warnings.    Other times, an officer or detective might be confident enough of the non-custodial nature of the setting not to read Miranda warnings,  under the belief that reading the warnings might cause the person not to talk.   Many a criminal conviction has been made possible solely because the defendant talked to police and told them what they needed to know to convict him or her.   When someone thinks he might have done something that could get him in trouble with the law, the best course is  almost always to discuss the matter as little as possible with the police, or with anyone other than his attorney for that matter.   Anyone who thinks she can talk her way out of the problem should think again, because the odds are seriously against it.    And anyone thinking seriously about having a discussion with the police about such a matter should discuss it with an attorney first.   If the officer seeking an interview seems sympathetic, it’s a tactic.   The officer has a job to do– it’s a catch more flies with honey than with vinegar kind of thing.    Anyone who isn’t under arrest, or in circumstances that amount to arrest, should forget being saved by a violation of Miranda rights because that person doesn’t have any Miranda rights.     And those who are read Miranda warnings should pay very close attention to them:  you have a right to remain silent and anything you say can and will be used against you.

Maybe this post will clear matters up a bit for those who are confused by what T.V. and the movies have taught them about Miranda warnings.  Understand though that this post is for informational purposes only.    It is intended only to inform the reader about Miranda rights in a general way.  It is not legal advice and the reader has no attorney-client relationship with me by virtue of having read this post.   You should not rely on this very general information or consider it legal advice as to any particular situation you might find yourself in.


Ed Folsom, Biddeford, Saco, Portland, Maine Criminal Defense, OUI, DUI Attorney.  York County, Cumberland County.