William C. Head, Criminal Defense Attorney explains “Miranda Rights”, how they protect criminal suspects once placed under arrest- and why these legal rights do not always apply in Georgia.
The term “Miranda Rights” comes from a 1966 United States Supreme Court decision, Miranda v. Arizona.
In the case of Miranda v. Arizona, 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 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.
When you are read Miranda rights, we recommend recording on video or audio to prevent a Miranda violation.
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.”
No. 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 Georgia Supreme Court ruled on the Miranda rights case, in Rackoff v. State, in 2006. That opinion stated the police officer couldn’t read Rockoff his Miranda rights, as he wouldn’t test properly because his blood alcohol levels were dropping rapidly.
The Georgia high court 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.”
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.”
Other states, like North Carolina, have similar implied consent laws, but they DO GIVE the Miranda advisement, and NC implied consent advisement after arriving at the police station with the DUI-DWI detainee.
The officer allows him or her to have 30 minutes to call and consult with an attorney or anyone else they wish.
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 Schermber 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.
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.
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 may change the prior holding that Miranda is not read to the person in custody until after the self-incriminatory breath alcohol testing is complete.
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 lawyer in the law firm must have full command of DUI laws and possess training in all aspects of successfully challenging the driving under the influence criminal case.
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 consultation, explain how their criminal attorneys search for a successful defense in your case, and aggressively represent clients to the maximum extent the law allows. Limit your search to DUI lawyers 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.
Call our DUI defense lawyers NOW, 24-7 at 404-567-5515, for an initial case review and FREE legal advice: 404-567-5515, or email our criminal justice attorneys.