What if the Police didn't read me my rights?
Before we get to that, you undoubtedly want to know if you are stuck with this charge, or if there is way out of it. By and large, it has been my experience that most people have a pretty good gut instinct about their case. If you were pulled over for speeding or weaving down the road, and felt that knot in your stomach and sense of dread when you saw the Police lights in your rearview mirror because you knew or suspected you had one (or a few) too many, then you probably know that you’re hoping for a longshot. That’s okay. It doesn’t hurt to ask. Together, through questions and answers on both sides, we’ll come up with the answer.
Very often, people arrested for a Drunk Driving or other Traffic Stop cases call and hope that the fact that the police didn’t read their Miranda rights can result in their case being dismissed. Miranda rights are the ones you hear all the time on TV and in the Movies. These need to be distinguished from your chemical breath test rights, known as your Implied Consent Rights, which should have been read, either by you or the Police Officer, prior to your taking (or refusing to take) the breath test at the Police Station.
Remember the first two sentences of your Miranda rights: You have the right to remain silent. Anything you say can and will be used against you in a Court of Law.
In most cases, even if the police did not read you your Miranda rights, I’m afraid it doesn’t matter. Rather than give you the long, lawyer talk version, let’s put it this way. If you are pulled over for weaving, then arrested for drunk driving, it is unlikely that the police have any intention of using anything you said against you anyway. Drunk Driving cases are won or lost on evidence of driving while under the influence, meaning breath and/or blood evidence, not on what the driver says. Your breath or blood test results are the most persuasive evidence to be used for or against you.
Suspended license cases are much the same. If you are pulled over driving and your license was suspended (whether you knew it or not), nothing you say (or don’t say, for that matter) is going to change that. Even if you admit that you knew your license was suspended when you were driving, the police will have no need to include that in the case against you.
You can fill a small library with all the legal cases and discussion about those two lines, but the one legal distinction that most people don’t know about is that your rights don’t apply until you are arrested. That means, in very simple terms, that all the questioning leading up to your arrest, in most cases, is informational, and while you aren’t under any legal obligation to say anything, your rights against self-incrimination don’t even start until the police actually “arrest” you. For that matter, you could fill another small library with the legal cases and discussion about what an “arrest” is, but for our purposes, it generally means those rights don’t start running until after you have blown (or refused to blow) into the portable breathalyzer in the back of the police car and the officer has decided you’re under arrest and going to the police station.
Once at the Police Station, there is a very certain, specifc protocol that the Police are required to follow with you. You are required to have been observed for at least 15 minutes to make sure you didn’t have or put anything in your mouth, or that you did not regurgitate (throw up). Likewise, the Police are required to either see that you read, or read to you, your chemical breath test, or Implied Consent Rights. Even if this did not happen, it is not fatal to the Prosecutor’s case. According to a 2006 ruling of the Michigan Supreme Court, dismissal of Drunk Driving Charges for the Police Officer’s failure to advise you of your Implied Consent Rights is no longer allowed. Instead, and this can get rather complicated, the significance of that failure is an issue for the Jury (or Judge, in a Bench Trial) to decide should you press the matter to Trial.