An interesting case is currently taking place in Wisconsin concerning Miranda Rights, also referred to as Miranda Rule and Miranda Warning. A woman accused of kidnapping her half-sister’s baby is claiming the FBI did not read her her rights and therefore, none of the evidence gathered during her first day in custody should be used against her. The woman claims the FBI did not let her have an attorney while she was questioned. Her attorney is now moving to suppress all of the statements she made to the FBI during her questioning.
This case raises questions that we get all of the time; what do I do if law enforcement doesn’t read me my rights?
Do Police Have to Read You Your Miranda Rights?
We do find there are times an officer doesn’t read a client their rights. In fact, one time we had an officer tell us he didn’t care what our client had to say. In most cases, if the officer doesn’t read you your Miranda Rights, what you say cannot be used against you throughout prosecution. However, if this happens to you, keep in mind that the best course of action is also the simplest one: do not talk to the police until you have sought out the advice of an attorney.
To begin, law enforcement does not need to read you your rights unless…
- You are in custody
- You have been asked questions
- Your answers could reasonably lead to incriminating responses
So, when is a person considered “in custody”?
This question is usually pretty easy. If you have been told you are under arrest and you are in handcuffs, you are in custody. A detention can sometimes be so long that it turns into custody, but that usually requires an extremely long detention. This type of custody is very fact specific and very uncommon.
But, what about a DWI and the sobriety tests you’re asked to take… is that considered an arrest? The short answer is no. The sobriety tests are part of an investigation and not an arrest, which also means you don’t actually have to partake in the tests when you’ve been pulled over. If you choose to participate, the test results are considered evidence and can lead to an arrest.
Questions That Lead to Incriminating Answers
If the questions asked have a real possibility of getting an answer that could get you in trouble, the police have to read you your Miranda Rights. For example, if an officer is making small talk with you about the past weekend’s basketball game, there’s no need to read Miranda. If the officer is asking you the question “how much have you had to drink?,” you must be read your Miranda Rights.
Our Expert Advice
If you’re not comfortable talking to the police, tell them you want a lawyer but be firm about it and leave no doubt. Simply say, “I want a lawyer.,” not “I think I want a lawyer.” When you’re unsure, don’t answer any questions. As in the case with the woman in Wisconsin, it’s hard to go back in time and retract what you’ve said to the law. Read more about this case.
If you have been charged with a criminal offense and you were not read your Miranda Rights, we can help. Thecriminal defense lawyers at Sandman, Finn & Fitzhugh have over 45 years of combined legal experience in representing those charged with DWI, felony drug, assault, alcohol offenses and more.