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Miranda Rights: Is a Miranda Warning Required in a DUI Case?


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By: William C. Head, Criminal Defense Attorney Atlanta Explains “Miranda Rights”, How They Protect Criminal Suspects Once Placed Under Arrest

People try to Google terms like “Miranda law” or “Miranda warning card” with no historic background of one of the most impactful criminal law decisions from the United States Supreme Court in Washington DC. Some know that the advisement comes from a US Supreme Court case, and search for “Miranda amendment” to see the constitutional source of the notification.

Miranda v. Arizona

Using a timeline in a police investigation, once cuffs are put on the suspected criminal or custody is otherwise CLEAR (e.g., a felony takedown of a suspect by police at gunpoint, with commands to lie face down and place his or her hands behind their back), this is “custody.” Questioning after that, without first admonishing the arrested individual of the right to not self-incriminate is subject to a pre- trial suppression motion.

Self-incrimination generally applies to issues where there is an accusation of criminal activity or specific crime. Barron’s Law Dictionary defines it as “the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself.”

William C. “Bubba” Head, Criminal Defense Attorney and veteran Atlanta DUI lawyer explains “Miranda Rights”, how they protect criminal suspects once placed under arrest and why these legal rights do not always apply in Georgia. Current appellate cases from the US Supreme Court may alter the long-standing rule in Georgia DUI laws that permitted police to NOT give Miranda advisements before requesting a post-arrest implied consent law breathalyzer test.

As it turns out, both the 5th Amendment and 6th Amendment were affected by the high court’s decision. By the slimmest of margins in a 5-4 majority opinion, our Supreme Court of the United States held that statements obtained from an already arrested defendant are inadmissible at a criminal trial if (before questioning) the police or jailers had not utilized procedural safeguards effective to secure “consent” from the person who was already in custody.

What Are Miranda Rights?

Miranda Rights

The term “Miranda Rights” comes from a 1966 United States Supreme Court decision, Miranda v. Arizona. In the landmark case of Miranda v. Arizona, 384 US 436 (1966), the US Supreme Court ruled law enforcement must read suspects their Fifth Amendment right to not make any self-incriminating statements before police questioning. These statements may not be used against them in a court of law. (“You have the right to remain silent,” etc.)

The Miranda case also gave the accused the right to counsel under the Sixth Amendment. Once the police charge you with a crime you are in police custody, you may consult with an attorney and have the attorney present with you during questioning. If you are requesting an attorney, any questioning must cease until an attorney arrives. If you cannot afford a lawyer, the State will appoint one to handle your case.

The Miranda Rights Script – Word for Word

Miranda Rights Script: The defense attorney can move to suppress to exclude any evidence obtained from being included in criminal proceedings. If you are in police custody, the officer must tell you every part of the Miranda warning, and in order. That precise Miranda vs Arizona notice is shown below.

For police to comply with the US Supreme Court’s ruling, these exact, complete sentences must be given to be able to prove full Miranda rights:

1.  You have the right to REMAIN silent.

2.  Anything you say can and will be used against you in a Court of Law.

3.  You have the right to a lawyer.

4.  If you cannot afford an attorney, one will be provided to you.

5.  Do you understand the rights I have just read to you?

6.  With these rights in mind, do you wish to speak and answer questions?

Miranda Warning

When you are read the Miranda rights, police would be well-advised to capture this on video or audio to prevent a Miranda violation. In the day and age of cell phones with free apps for recording, even officers without car cameras or body cameras can comply with this method of proving compliance with the 5th Amendment and 6th Amendment.

Law enforcement has violated your Miranda rights when police ELICIT any statement from the person in custody that may lead to self-incrimination post-arrest, testimonial, or during custodial interrogation questioning.

Law enforcement gives the Miranda Warning and documents it in the police interrogation room before questioning a person in custody, to people who have walked into the precinct, or said something dumb, like, “I have nothing to hide.”

An Explanation of Your Miranda Rights

  • Does a difference exist between Miranda rights and a Miranda warning?
  • What exactly does it mean when an officer says, “You have the right to remain silent?”
  • When are police required to read the Miranda warning?
  • Extreme danger exists is STARTING to answer questions, and then stopping.
  • “Waiving” your Miranda rights explained
  •  Explain the phrase: “Anything you say can and will be used against you in a court of law.”
  • Please explain the phrase: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
  •  What if a detained person wasn’t read his or her full rights before questioning?
  • What constitutes police interrogation?
  • Are there exceptions to when the officer needs to read Miranda rights?

Where Does a Miranda Definition Come From?

The Fifth Amendment Miranda Rights to the United States Constitution, as part of the Bill of Rights, provides more than one protection. In addition to preventing multiple trials for the same offense or Double Jeopardy, it also includes the right against self-incrimination a trial. It has been held to apply during “custodial interrogations” prior to trial or as part of a criminal investigation.

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The Bill of Rights, which refer to the first ten amendments to the United States Constitution, were in response to a history of abuses in Britain. The use of torture and forced confessions was common in the late 1600’s and early 1700’s. In fact, those who refused to give an ex officio mero (which involved a swearing of innocence or confession) oath was considered guilty.

The purpose, at least in part, of the Fifth Amendment was to preclude compelled testimony at trial OR if collected as part of a custodial interrogation and introduced as evidence at trial. The accused can neither be forced to take the stand in his or her own defense, to be forced to provide testimony of any sort and similarly, the failure to provide evidence or testimony cannot be used as evidence of guilt. Neither may law enforcement compel, during interrogation, a confession or facts regarding the circumstances of a crime.

Amendment V.

In simple terms, “taking the 5th” relates to the Fifth Amendment of the Constitution and the protection against self-incrimination. The concept of Due Process of Law also comes into play regarding the exclusion of improperly obtained evidence.

Invoking Your Miranda Rights

If the individual indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease. If the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him or her present during any subsequent questioning.

History of the Miranda Case

History Of The Miranda Case

The Miranda decision was one of the most-controversial decisions of the Warren Court, which had become increasingly concerned about the methods used by local police to obtain confessions. In Miranda v. Arizona the court reversed an Arizona court’s conviction of Ernesto Miranda on charges of kidnapping and rape.

After having been identified in a police lineup, Miranda was questioned by police; he confessed and then signed a written statement without first having been told that he had the right to have a lawyer present to advise him or that he had the right to remain silent. Miranda’s confession was later used at his trial to obtain his conviction.

The Miranda case was one of four appeals, three of which had been decided against the accused citizens, and a 4th case in favor of suppression of the custodial interrogation. The Miranda case have wound its path from the Arizona courts, to the federal North Circuit Court of Appeals in San Francisco.

In an overgeneralization, officers connected to police agency cannot question a defendant unless it demonstrates prior advisement of the full legal rights under the United States Constitution of that accused person. No interrogation of the defendant is admissible unless police first secure the privilege of legal counsel being advised as well as telling the person of his or her right to not talk without a lawyer present.

Prosecutors nationwide have taken every opportunity to have judges curtail or limit the impact of Miranda. Their issue is that, following arguments that the original intent of the Founding Fathers is not followed in Miranda and its progeny. For certain, the exact words of the Fifth Amendment and Sixth Amendment do not cover the broad impact of this landmark case on police investigations.

The closest the Prosecutors came to roll back Miranda protections was the case of Dickerson v. United States, 530 U.S. 428 (2000). Seeing a major shift in conservative members of the Supreme Court, this case was heralded by District Attorneys across America as being the “end of Miranda.” Instead, Chief Justice Rehnquist delivered the high court’s 7-2 decision, saying these important words:

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. See Mitchell v. United States, (stating that the fact that a rule has found “ ‘wide acceptance in the legal culture’ ” is “adequate reason not to overrule” it). While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, see, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), we do not believe that this has happened to the Miranda decision.

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Does a Miranda Warning Have to Be Given in a Georgia DUI Case?

Currently, NO. Two seminal cases were decided in 2017 and 2019, which caused the old, defective Georgia implied consent notice to be scuttled. The first was Olevik v. State, 302 Ga. 228 (2017) and the second was Elliott v. State, 305 Ga. 179 (2019).

Elliott V. State

After Elliott was decided on February 18, 2019, the Georgia Legislature quickly passed a new law altering the implied consent advisement, post-Elliott, and it became effective on April 28, 2019.

The background of admissibility of implied consent refusals goes back for more than half a century. In Schmerber v. California, 384 U.S. 757 (1966), our nation’s highest court affirmed a DUI conviction and ruled that a warrantless blood drawn over objection did not violate accused’s Fourth Amendment or Fifth Amendment rights:

The officer in the present case . . . might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ [Cit.] We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest. [384 U.S at 770-771.]

A key principle in Schmerber is not applicable in Georgia. Schmerber rejected a self-incrimination claim, holding that Fifth Amendment protection is limited to evidence of a testimonial or communicative nature. But Paragraph XVI in Georgia’s Bill of Rights “has a nearly unbroken history of application to compelled acts, not merely testimony.” Olevik, 302 Ga. at 239.

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), is a non-DUI case which is often cited in DUI cases. The Schneckloth court addressed the issue of informed consent to search. The Court first acknowledged:

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” [cits.] 412 U.S. at 219.

One of those exceptions is consent. In Schneckloth, officers performed a “consent search” of a vehicle in which Bustamonte was a passenger and found stolen checks under the rear seat. In gaining consent, officers did not inform Mr. Bustamonte that he had a right to refuse the search. The Court held that while knowledge of a right to refuse consent is a factor to be considered, the State need not prove that a person giving permission to search knew he had a right to withhold his consent. The Court held that the voluntariness of consent is to be determined from the totality of the circumstances.

Current Georgia case law has held that a Georgia police officer doesn’t have to read Miranda warnings to a handcuffed DUI arrestee. Even though the person has already self-incriminated in police custody by taking the Georgia implied consent law test by his or her blood, breath or urine. Detained citizens often confuse the Miranda notice with the GA implied consent law notice, the police give to the arrested citizen.

The Prior Georgia Case That Deprives a Citizen Arrested for DUI in Georgia of Miranda Rights

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The Georgia Supreme Court ruled on the Miranda rights case, in Rackoff v. State, 281 Ga. 306

(2006). That opinion stated the police officer couldn’t read Mr. Rackoff his Miranda rights, as he wouldn’t test properly if the process was delayed, because his blood alcohol levels were dropping rapidly.

The idiocy of the Rackoff opinion (after Williams, Olevik and Elliott) is that our courts routinely uphold Miranda rights in serious felony cases, like rape, aggravated sodomy and burglary, but not for a first offense DUI offender trying to get legal advice. Cf., Tyner v. State, 334 Ga. App. 890 (2015). Luckily, other states have honored the use of Miranda before implied consent is exacted from an already-detained DUI-DWI suspect.

This ruling is contrary to the essence and the purpose of Miranda v. Arizona. Noted DUI lawyer in California, Lawrence Taylor, calls this “the DUI Exception to the Constitution.”

In neighboring North Carolina, the Tar Heel state has similar implied consent laws to Georgia’s, but that DOES require officers to first give the Miranda advisement, and then give their NC implied consent advisement.

The officer allows him or her to have 30 minutes to call and consult with an attorney or anyone else they wish. All of this is done after arriving at the police station with the DUI-DWI detainee.

Although “Miranda Rights” are a consideration in many criminal cases, it requires careful analysis and/or explanation of a common misunderstanding of a complicated area of law. The most honest response to legal question involving Miranda Rights and DUI in North Carolina is, “It depends. Let’s talk more about the case.”

The Georgia high court in Rackoff justified this long-standing exception to the Constitution by referencing two critical cases involving DUI blood and breath tests, Schmerber v. California and Welch v. State: “The privilege against self-incrimination, which Miranda was designed to protect, is not implicated in blood test or breath test cases.”

Two recent U.S. Supreme Court decisions (McNeely and Birchfield) seem to disagree with the Rackoff holding and are more encouraging for the future. Limiting the now-outdated Schmerber decision, the first of two high court decisions relating to blood testing was issued in Missouri v. McNeely, 569 U.S. 141 (2013).

The State of Missouri (in McNeely) claimed that their implied consent law justified forcible blood draws, with no need for a warrant. Undoing a major tenet of Schmerber, the McNeely court held that the natural dissipation of alcohol in the bloodstream does not present a per se exigency that, in all DUI cases, justifies an exception to the Fourth Amendment’s warrant requirement.

Further limiting Schmerber, the U.S. Supreme Court made a second DWI-DUI case ruling in Birchfield v. North Dakota, 579 US. ____, 136 S.Ct. 2160 (2016), by holding that the Fourth Amendment permits warrantless breath tests but not warrantless blood tests.

The Birchfield Court decided three companion cases: Birchfield, Bernard and Beylund. Mr. Birchfield was criminally prosecuted for refusing a blood test. His conviction was reversed.

Mr. Bernard was criminally prosecuted for refusing a breath test. His conviction was affirmed. Mr. Beylund submitted to a blood test after being told that the state could compel both breath and blood tests. His case was remanded for the state court “to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.” 136 S.Ct. at 2186.

Because electronic search warrants can be obtained by police communicating with a judge in minutes via several modes of technology, and delay and dissipation of BAC levels are not a consideration. Moreover, the instant case is not an alcohol dissipation case, and only dealt with alleged drug impairment. The Schmerber dissipation issue is a non-starter in this case.

Two Newer United States Supreme Court Cases Are Somewhat Helpful

However, two recent rulings from the United States Supreme Court, Birchfield v.

North Dakota (2016) and Missouri v. NcNeely (2013) have issued opinions that detract from the urgency of dissipating alcohol levels, the big issue in the Schmerber case.

Furthermore, the US Supreme Court ruled, in Birchfield, that a breath alcohol test is not a Fourth Amendment (search and seizure) violation. However, the Georgia Constitution states under Paragraph XVI that protections against self-incrimination apply to the series of “acts” of blowing into an Intoxilyzer 9000 device, following police officer instructions.

Our DUI Law Firm’s Pending Appeals on the Constitutionality of Breath Testing

Many exceptions have been carved from the original 1966 ruling, so hire the best criminal defense attorney to fight for the exclusion of incriminatory breathalyzer evidence. A drunk driving lawyer from our law firm will carefully explain our approach to winning DUI cases for our clients.

William C. Head obtained a favorable ruling in a Cobb State Court case in late 2016, and this is currently under appeal in the Georgia appellate courts. So, if you have a high breath test, don’t plead guilty without talking to us. These current appeals will change the prior holding that Miranda is not read to the person in custody until after the self-incriminatory breath alcohol testing is complete.

What Kind of Attorney Do I Need? Searching for The Best DUI Lawyer Atlanta GA

After being arrested for DUI in Georgia, the first thing to do it identify an expert on Georgia DUI law through top attorney ratings. Look at who is BEHIND the law firm, review each of the trial lawyers’ credentials, and check out the criminal defense attorney who leads the law office.

Every experienced DUI attorney in the law firm must have full command of DUI laws and possess advanced training in all aspects of successfully challenging the driving under the influence criminal case. This includes field sobriety tests, and alcohol breath tests, plus blood tests for alcohol or drugs.

This successful defense record must include suppressing breath alcohol tests, and knowing every prior appellate decision on the Georgia implied consent law. An increasing number of drugged driving cases require that our criminal defense lawyers know how to challenge a GBI blood alcohol or drugs test. Being an INSTRUCTOR in the three NHTSA standardized field sobriety tests (SFST) is also necessary.

The best DUI attorneys in Atlanta, Georgia will offer you a FREE lawyer consultation, explain how their criminal attorneys search for a successful defense in your DUI case, and aggressively represent clients to the maximum extent the law allows. Limit your search to DUI attorneys who have legitimate lawyer ratings and a history of proven results on knowing how to beat a DUI. If we are the criminal defense attorneys for you, ask us about our attorney payment plans.

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Call our Atlanta DUI defense lawyers NOW, 24-7 at 404-567-5515, for a FREE consultation. Larry Kohn, Bubba Head and ex-cop Cory Yager are ready to assist you fight your case.

Obtaining this initial case review and FREE legal advice can alleviate many of your concerns about the drunk driving case.

Although based in Fulton County, our drunk driving law specialists travel the entire state of Georgia to fight for clients who MUST beat their DUI charge.


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