You have the right to remain silent. Use it.
The US Constitution has given you the power to remain silent. If you are pulled over by a police officer in a traffic related investigation and asked questions about time, speed, distance, or other questions that would incriminate you, you can politely tell the officer that you do not want to make any statements that incriminate yourself, but you are willing to provide your license, registration and insurance. If you are pulled over for being drunk, do not answer any questions, other than your biographical information. Do not talk about how much you drank, when you drank etc. All of that will be used against you.
The officer does not always have to read you your rights.
In California, an officer must only read you your Miranda Rights when you are in custodial interrogation. Generally speaking, most conversations between law enforcement and a suspect are interrogation. However, they are not always custodial in nature. Many police officers choose not to arrest until they have finished their investigation and have chosen to put you in custody. Don't wait until it's too late. Invoke your right to remain silent immediately.
There are three types of police encounters in California: What are they?
There are three types of police encounters: (1) Consensual encounter: (2) Investigative detention; and (3) Arrest. The difference between the three affects when police officers have to read you your Miranda Warnings.
A Consensual Encounter Defined.
In a consensual encounter, the person questioned by law enforcement is under no obligation to remain at the scene or respond to any questions posed by the officer. Imagine a situation where an officer is simply requesting assistance in locating an unknown suspect. If an officer approaches you and asks you if you have seen this individual, you can simply choose to ignore that officer. You are not being detained and you are not under investigation. In this setting, a police officer is not required to read you your Miranda rights.
What is an Investigative Detention?
In an investigative detention, a police officer generally needs probable cause or reasonable suspicion to believe that a crime has just taken place or is about to take place. Based on that standard, you could be detained so that the officer could conduct his or her investigation. A good example of an investigative detention is when you are pulled over for a traffic offense. While you can admittedly never make any statements to the police whatsoever, you are not permitted to end the detention prematurely and tell the officer that you have to go. In this setting, while being detained for investigation purposes, a police officer does not have to read you your rights unless you are in custody. Custody can be defined as physically restrained or, in some other situations, where your liberties have been restricted. Generally speaking, an officer does not have to read you your Miranda Rights in an investigative detention. This is the most critical time to remain silent.
What is I am arrested?
If you are arrested for a crime, the officer will likely read you your Miranda Warnings and attempt to question you with your consent and waiver of your Miranda Rights. If the officer already received incriminating statements from you before you were arrested, then he or she isn't so concerned about what you will say after you have been given your Miranda Warnings. Again, we cannot stress the importance of remaining silent enough.
Does An Officer Have to Record A Statement That You Made?
The short answer is no. An officer is not required to record any statements by you by audio or video equipment. Typically, the officer will take notes and then use those notes to prepare a written narrative of the police encounter and/or detention.
Practice your right to a remain silent.
The best way to know how to deal with a particularly vulnerable situation where someone can speak when they are not supposed to is to practice. Pretend you have just been pulled over under suspicion of driving under the influence of alcohol. What is the best thing to say or not say. When the officer look at you and believes you are driving drunk, he will begin a investigative detention to determine whether there is sufficient probable cause to arrest you. You can practice today by saying, "Officer, I do not wish to make any statements that would incriminate myself without my attorney present". That should be sufficient to preclude the officer from asking you pertinent investigative questions that would likely elicit an incriminating response. You should still cooperate with the the investigation to the extent that you may be required to give a breath or blood sample in your particular situation per DMV's requirements of the Implied Consent Laws. However, once again, know your rights.
Officers often get awards for the number of arrests that they make.
Mothers Against Drunk Drivers, commonly referred to as MADD often rewards patrol officers for their efforts in arresting those accused of driving under the influence of alcohol. The decision to arrest is based on probable cause. MADD often rewards officers for conducting 100 DUI arrests in a particular year. The Officer can be asked to come to a luncheon where he is recognized and given a certificate for his accomplishments. By not making incriminating statements, you are precluding an officer from making you his 100th arrestee. Many people do not know about MADD and their awards given to law enforcement.
Why Remain Silent?
The best cases to defend are the ones where the defenses have not been limited. A client can drastically affect his or her case by speaking to the police and eliminating certain defenses that would otherwise have been viable. For example, a police officer is trained to ask you questions about whether you had consumed food before you drank alcohol as part of the DUI investigation. This question is extremely relevant and particularly helpful for the prosecution in establishing a timeline of how your body absorbed alcohol and whether you were driving impaired. By not discussing what you ate, you give a defense attorney an opportunity to successfully cross-examine an expert who could admit that without knowing whether you had consumed food, that they cannot determine your blood alcohol concentration at the time of driving. Other questions that are often asked in these situations also assist the the prosecution. Folks, invoke your right to remain silent.