Interviewer: Then in terms of Miranda Rights, I mean do you have clients that say, “They violated my Miranda Rights?”
Gary: All the time, and that’s where the misconception comes into play. All Miranda says is that before you give a statement to the police, you have a right to be advised of the following rights. If they don’t advise you and if you don’t give a statement, the police have nothing to use against you in a court of law, so Miranda means nothing.
So, that’s the first question I always hear, “Well he didn’t read me my Miranda Rights,” and I said, “Well, did he question you?” “No. Once I was arrested and placed in custody he didn’t ask me any questions.” Well, then Miranda really doesn’t come into play.
Miranda applies when the police put you in a custodial situation, sit you in the back of the car and start asking you questions about your actions without reading you the Miranda Rights. If that occurs, then anything you say they can’t use, but Miranda really isn’t an issue in most DWI cases.
Interviewer: Are you obligated to tell the police where you’re coming from and how much you had to drink?
Gary: You’re obligated to tell the police your name. You have to identify yourself and give them your driver’s license. If you do not do that then they can charge you with failure to identify. But that’s all you’re obligated to do.
I have had clients who, the minute the officer says, “Would you like to step out of the car please and say I’d like you to take some field sobriety tests,” and the client says no. The officer puts the handcuffs on him and takes him downtown. Sometimes they will tell you that if you don’t take the tests that your license will be suspended. It almost sounds like a threat, but it really doesn’t mean anything because Texas is an implied consent state, so they’re not giving you any misinformation.
There were a number of cases a number of years ago where they were alleging the officers were supplying misinformation to get drivers to undergo a breath test. It really doesn’t matter anymore because they’re going to get your breath or your blood, one way or the other.
Interviewer: Since you’re probably going to jail anyway, you might do better if you don’t say much to the police?
Gary: Exactly. Basically that’s my philosophy. I mean talking to the officer isn’t going to get you anywhere. It is better if you remain relatively quiet but you can talk to them and say yes officer, no officer, I really don’t want to do that officer, and that’s about the best advice I can give somebody. The less said the better because everything you’re saying is going in his police report.