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DWI but never told by cop I can remain silent. Is case beatable?

La Habra, CA |
Attorney answers 6

Best Answer

Sometimes. Whether a police officer has to read you your rights on a DUI or DWI stop depends on whether or not you are in police custody -- that is, whether you are subject to the restraints common to a formal arrest. The U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute "custodial interrogation." However, once you are arrested -- or restrained by the police in a manner consistent with arrest -- you must be read your Miranda rights.


The protections of Miranda vs. Arizona do not cover your DUI stop


First in California there is no such thing as a DWI; everything is a DUI but understand you can be under the influence of more than just alcohol. There are several cases on point that say you do not have Miranda rights for a road side investigation. Almost 99% of all DUI investigations take place prior to the individual being arrested and there is no requirement that you be informed of your Miranda rights. Once you are actually arrested this changes but by that point they typically never ask you any more questions. So to answer your question directly no that will not be a reason to get the case dismissed. However there may be many other issues with the stop and or investigation. Feel free to contact my office for a free consultation.
Robert Driessen

Mr. Driessen is a former Deputy DA in Orange County with over 8 years of criminal law experience. Nothing stated on this site shall in anyway be construed as legal advice, or as creating any attorney client relationship. If you would like to hire Mr. Driessen, feel free to contact him at


A Miranda violation, if there was one (and typically, Miranda warnings are not required on a traffic/DUI stop) would result in suppression if your statement but wouldn't necessarily invalidate the entire case.

There may other legal or factual defenses an you should at least consult with an attorney. Don't miss the 10 day window to schedule a hearing with the DMV or your license will be automatically suspended.

The above answer is for general information only and is based on the information you posted. Every case is fact dependent, so to get a thorough analysis of your situation, you will need to consult face to face with an attorney licensed to practice in the jurisdiction where the incident took place. Do not conclusively rely on any information posted online when deciding what to do about your case.


If you knew your rights before the officer started questioning you, why would you not use them and simply remain silent?

Any information provided through in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.


Virtually all DUIs are potentially beatable, if you have the properly trained and motivated attorney, and it has nothing to do with whether or not your Miranda rights were violated. The courts, originally conceived as an agency to protect people from overweening government but now generally part of the overweeners' agenda against individuals, have fashioned what I call the "drunk driving exception to Miranda," and they allow the fiction that you are not really in "custody" when the cops are grilling you about much of what is necessary to put a DUI case together. But that never becomes an issue if people follow the oft'trumpeted advice to never talk to the cops, NEVER.. People, however, just can't seem to keep their mouths shut and they supply an enormous amount of information the government needs to help their prosecution. However, an attorney with the proper understanding of the relevant forensic issues can put you in good stead, despite your big mouth. cases that are fought frequently can be won; those that are not fought axiomatically never can be won.

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