Over the nearly eighteen years that I have been handling criminal defense cases, I must have heard at least two hundred times a client say words to the effect that “the cop didn’t read me my Miranda rights, they have to dismiss my case, right:” The short answer is no, a court usually does not have to dismiss your case because a police officer did not read Miranda rights to a person who is suspected of and arrested for committing a crime.If a person is subjected to mere investigatory questioning, Miranda rights need not be read. And the penalty imposed upon the prosecution for failure of law enforcement to read Miranda rights once a person is under arrest is the suppression of a statement made by a defendant as a result of a custodial interrogation by law enforcement.So if the only evidence of a person committing a crime is their own statement, that case could be dismissed for failure to read Miranda rights, because the statement would be subject to suppression and is the only evidence linking a defendant to the crime.
This works on police TV shows, where Miranda rights are read while a person is placed under custody. In real life, however, some prosecutors will go to great lengths to try and establish that persons are not in custody when incriminating statements are made by a defendant, and therefore, Miranda warnings were not required at the time a statement was made. In the context of a DWI stop, in reality, a motorist is almost never free to leave until the police officer is through asking questions and issues a ticket, makes an arrest and transports the motorist to the station or otherwise releases the motorist from the scene.
In fact, the United States Supreme Court, in Burkemer v. McCarty, U.S. (1984) determined that mere roadside questioning of a motorist detained for a traffic stop does not constitute “custodial interrogation” so as to entitle the motorist to the protections prohibited by his Miranda rights. If the motorist is subjected to treatment that renders him or her: in custody (i.e. subject to custodial interrogation) however, in that event, the Miranda warnings must be given. And, of course, Miranda rights were established by the landmark decision in the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Since breath, blood and most forms of field sobriety tests have been determined to be non-testimonial and, therefore, non-violative of the Fifth Amendment privilege against self-incrimination, no Fifth Amendment right to counsel attaches, and no Miranda warnings must be given prior to testing. Many courts have also decided that breath testing is not a critical stage of the proceedings and therefore, there is no Sixth Amendment right to counsel at that stage. Nevertheless, some states, by statute, allow the accused motorist the opportunity to consult an attorney prior to deciding whether to submit to a chemical test. That right may only be exercised if it does not unduly delay or unreasonably interfere with the test. In all but the most serious cases, it is almost always better to subit to a chemical test when warned by an Officer that a failure to do so will result in an immediate suspension or revocation of a motorist’s license to drive.