Miranda Rights Violations

Review of the Miranda Warning 

If you’ve ever been arrested, or if you’ve ever watched a cop show on TV, then you know that being read your Miranda Rights is a crucial part of the legal process.

The police must explain these rights to you and make sure you understand them before they interrogate you after an arrest.

Police are required to read your Miranda Rights after an arrest and before questioning.

If they fail to “read you your rights,” it may make some or all of the following questioning inadmissible in court and affect the prosecution’s ability to convict you for a crime.

That being said, there is a lot of misunderstanding among the public regarding the Miranda Rights and when they have, and have not, been violated.

Many people believe that if they are arrested and not read their rights, then they can avoid the consequences of their illegal conduct. This is mostly a myth with a few exceptions.

If you’re charged with any California crime and you believe that your Miranda rights weren’t properly explained, or were violated by the police, then you should seek legal advice. 

Our Los Angeles criminal defense attorneys will discuss the details of these rights below, what you need to know about them if you’ve been arrested, and how to enforce them if you believe the police have violated them.

What Are the “Miranda Rights?”

The Miranda Rights derive their name from the Supreme Court Case Miranda v. Arizona, which established the requirement of police to “read you your rights” after an arrest and before questioning you.

In this landmark case, the court decided that the constitutional rights of Ernesto Miranda were violated during his arrest and trial for armed robbery, kidnapping, and rape.

Put simply, the law requires law enforcement officers to explain your Miranda rights after your arrest, but before questioning you, or pursuing a formal statement while in police custody.

However, the rights themselves are simply a restating of the Fifth and Sixth Amendments to the Constitution—namely, the right not to incriminate yourself and the right to have an attorney.

By law, after you’ve been arrested, the police officer must make some version of the below statement, known as the Miranda Warning, before asking you any questions:

• “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford a lawyer, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

As noted above, the police must read you the Miranda Warning after you have been arrested and before interrogating you.

If they fail to read you this warning before asking you questions, any evidence they obtain in their conversations with you may be inadmissible in court.

Do the Police Have to Read the Miranda Warning at the Time of Your Arrest?

Not necessarily—and this is where some people get confused. Your Miranda Rights have nothing to do with the arrest itself—only with police questioning you after your arrest.

They only have to make sure your rights have been explained to you before they interrogate you.

If they opt not to ask you any questions, they’re not legally required to read you your rights at all. Conversely, if you’re not under arrest, they can still ask you anything they like without reading the warning, but you don’t have to answer.

Miranda Warnings in DUI Cases

Police officers are normally not required to read Miranda rights during a DUI investigation after a traffic stop unless you were placed under arrest and they start asking incriminating questions.

Put simply, a Miranda warning is not always required after a driving under the influence arrest. It only be read if you were already arrested and then you are being interrogated.

If law enforcement is conducting a DUI investigation on the side of the road, before any arrest are made, it’s a myth you must be read Miranda rights.

During a DUI investigation, police officers will normally follow certain procedures, such as:

• Ask the driver for a driver’s license and proof of insurance;
• Ask the driver to perform field sobriety tests and also a preliminary alcohol screening (PAS) breath test;
• Ask the driver to take a cheek swab to test for marijuana DUI;
• Ask the driver to submit to a horizontal nystagmus test (HGN), which is an involuntary jerking of the eyes;
• During these initial questions, they are looking for signs such as breath smelling of alcohol, slurred speech, watery eyes, incoherent speech, slow and confused responses, poor motor skills, difficulty in removing driver’s license from wallet, etc.

They will also ask common questions such as if you were drinking or have you taken any drugs today?

As you can see, during this DUI investigation, you have not yet been arrested and there is no legal requirement to read your rights during this process.

If you are subsequently arrested for DUI after the investigation, then the Miranda warning is required before asking any further incriminating questions.

Readers should note that during a DUI traffic stop, you always have the right to remain silent and not speak at all to police officers.

Put simply, you don’t have to answer any of their questions after the traffic stop and during the DUI investigation. This does not mean it’s wise to be a jerk and completely uncooperative.

However, you are required to show them your driver’s license and proof of insurance.

Can Miranda Be Waived?

Yes. after you are read the Miranda warning, police will normally ask if you understand each right.

Next, they will ask you if you still want to speak to them? This is commonly called a “Miranda waiver.”

Police officers are not legally required to use certain words when asking if you wish to waive your Miranda rights. Most will ask some form of these questions below:

• Do you clearly understand all of these rights I just explained?
• Knowing you have the right to remain silent and not answer any questions, will you talk to us?

If you verbally agree to speak with them at this point, then you have just waived your Miranda rights and invoked the right to remain silent.

You might be asked to sign a written waiver acknowledging that you have waived your rights.

I Was Never Read My Rights. Can the Police Still Use What I Say Against Me?

Possibly. This part is, again, confusing for some. Remember, the police only have to read the Miranda Warning before they begin to question you.

However, the second statement of that warning, “anything you say can be used against you,” still applies.

If you say something voluntarily before they start questioning you—or if they never officially question you—the words you said in their presence may still be used against you in court.  

That’s why it’s always best to remain silent until speaking with an attorney—whether or not your rights are read to you.

If, however, the police do start questioning you without reading the Miranda Warning first, that’s considered a violation of your rights, and what you say beyond that point may not be used as evidence against you.

What Happens if Your Rights Are Violated?

In review, the following may be considered a violation of your Miranda Rights:

• If the police interrogate you without reading you the Miranda Warning;
• If they do not permit you to have an attorney present while questioning you; or
• If they attempt to coerce you into making self-incriminating statements during the interrogation;
• Law enforcement officers failed to give any warning.

In these cases, the answers you give should be inadmissible in court.

At that point, your attorney will usually file a “motion to suppress evidence,” claiming that the statements you made to the police under those circumstances were obtained illegally. If the court agrees, those statements will be thrown out.

Will Your Case Be Dismissed Over Miranda Violations?

Sometimes, but not always. A Miranda violation is not necessarily grounds for dismissing the charges against you.

It only means the information the police obtained during that violation, including any confession you may have made, was obtained involuntarily and may be used as evidence.

Contact our law firm if you were arrested and believe your legal rights were violated

If the only evidence against you is evidence obtained illegally, then the case may be dismissed.

However, if the prosecution has additional evidence to prove their case against you, the case may still move forward.

We defend individuals charged with California crimes whenever their legal rights have been violated during or after an arrest.

When the government doesn’t inform you of your rights and then illegally obtains evidence or a confession, that evidence or confession could then be excluded in court, which is known as inadmissible evidence.

If you were arrested and have reason to believe your rights were violated, then you need legal advice. Eisner Gorin LLP is based in Los Angeles County and you can contact our law firm for an initial consultation at (310) 328-3776.

Miranda Rights: What Happens If the Police Don’t Read You Your Rights

Many people believe that if they are arrested and not “read their rights,” they can escape punishment. Not true.

By Micah Schwartzbach, Attorney  UC Law San Francisco
Updated by Rebecca Pirius, Attorney  Mitchell Hamline School of Law

Updated 12/09/2024

 Why Trust Us?   Fact-Checked 

Every cop show plays out this scene time and time again—officers slapping the cuffs on a “perp” and reading him his rights: “You have the right to remain silent. Anything you say can and will be used against you in a court of law….” Believe it or not, this all-too-familiar arrest scene and reading of one’s Miranda rights presents a rare instance in which Hollywood stays true (for the most part) to the laws of criminal procedure.

However, many people mistakenly believe that every police interaction requires a Miranda warning, which isn’t the case. Read on to learn when Miranda warnings are required, when they’re not, how to invoke these rights, and what statements can or can’t come into court.

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In This Article

What Is the Miranda Warning?

In the typical Miranda warning, police tell a suspect who they want to question:

• You have the right to remain silent.
• If you do say anything, it can be used against you in a court of law.
• You have the right to have a lawyer present during any questioning.
• If you cannot afford a lawyer, one will be appointed for you if you so desire.

This warning is a procedural safeguard designed to protect a person’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.

Police must read the Miranda warning to a suspect who’s in custody if the police want to ask questions and use the answers as evidence at trial. Officers don’t need to convey these warnings verbatim or use any magic words. They simply need to convey that these rights exist.

Where Do Miranda Rights Come From?

Miranda rights come from the 1966 Supreme Court decision of Miranda v. Arizona. The defendant in this case, Ernesto Miranda, signed a confession admitting to kidnapping and raping a woman. Police had questioned him for two hours and never advised him of his right to remain silent nor his right to an attorney. Prosecutors used the signed confession to get a conviction.

The U.S. Supreme Court tossed out Miranda’s conviction. While people are entitled to voluntarily waive these and other constitutional rights, the Court recognized that voluntariness depends on knowledge and free will, and that people questioned by the police while they are in custody frequently have neither. The Court decided that prosecutors cannot use statements obtained from a criminal suspect who’s in police custody and being questioned unless the suspect understands their constitutional rights and knowingly gives them up. The advisement of these rights is now known as the Miranda warning.

When Is a Miranda Warning Required?

Miranda rights come into play when two things happen:

• a suspect is “in custody” (arrested or not free to leave), and
• police want to question the suspect.

In legal jargon, this is called a “custodial interrogation.” Both parts must be true for Miranda rights to kick in.

When Is a Suspect “In Custody”?

While handcuffs are a good indication that someone is in custody, circumstances that fall short of a formal arrest can also count. A person is considered in custody anytime police have deprived that person of their freedom of action in any significant way. In other words, the person doesn’t feel free to walk away.

What Is an Interrogation?

Interrogation means questioning. The questioning doesn’t have to be formal or conducted at a police station. It can occur anywhere—on the street, in the squad car, or at a hospital, for example. Questions can be direct (“Did you rob the bank?”), or they can be comments or actions by the officer that the officer should know are likely to produce an incriminating reply (“We know you robbed the bank. Just tell us your side of the story.”).

Intimidating, Coercive, and Compelling Environment

Not every situation lends itself to a clear indication that a custodial interrogation is taking place. A judge has the final say if it comes to that. Courts consider several factors to determine whether the interrogation was custodial, including how intimidating, coercive, and compelling the environment was.

For instance, bringing a suspect to the police station and having an armed officer conduct a three-hour-long interview points to a custodial interrogation. Whereas a 15-minute interaction on the street initiated by the person (and not the officer) leans toward a non-custodial situation.

When a Miranda Warning Isn’t Required

As noted above, not every police interaction requires a Miranda warning. Many people mistakenly believe that police must read Miranda rights anytime someone is arrested or answers police questions. But this isn’t the case. As noted above, Miranda rights only kick in when a person is in custody and being questioned.

Arrest But No Questioning: No Miranda

Police can arrest someone, put them in the back of a patrol car, and take them to the station for booking without once mentioning their rights or saying anything at all. Officers might hope that the suspect will just start blabbering. If the person speaks up of their own accord, whatever they say may very well be admissible in a trial.

Questioning But No Arrest: No Miranda

Police officers sometimes take the exact opposite approach and avoid arresting people. They make it clear to the person that they’re free to go—precisely so they can ask questions but don’t have to give the Miranda warning. Then they can arrest the suspect after getting the incriminating statement they wanted all along.

Other Police Encounters That Don’t Require Miranda Warning

Other common police encounters that don’t (necessarily) trigger the right to a Miranda warning include:

• short traffic stops
• brief street encounters
• stop-and-frisk, and
• execution of a search warrant.

And, as long as the person is free to leave, police have no legal obligation to provide a Miranda warning when taking witness statements at a crime scene or questioning someone who voluntarily goes to the police station.

How to Invoke Your Miranda Rights

Generally, the less one says to the police without a lawyer present, the better. But silence doesn’t work to invoke (assert) one’s Miranda rights. The Supreme Court decided that suspects must clearly and unequivocally invoke their right to remain silent and speak to an attorney. If they don’t, police can continue to question the suspect and any answers given will likely be admissible.

Invoking the Right to Remain Silent

While it seems counterintuitive, if a person wants to remain silent, they need to speak up. For instance, a person could tell police:

• I choose to remain silent
• I assert my right to remain silent
• I’m not answering your questions, or
• I want to invoke my Fifth Amendment right to stay silent.

The point of speaking up is to avoid any ambiguity. Once a person invokes their right to remain silent, police questioning must stop (at least for the time being). (Berghuis v. Thompkins, 560 U.S. 370 (2010).)

Invoking the Right to Counsel

The same rules apply to invoking one’s right to counsel—the request should be unequivocal. To invoke the right to counsel, a suspect should clearly indicate:

• I want to call my attorney
• I want to speak to an attorney, or
• I refuse to answer any more questions until I speak with a lawyer.

Waffling on whether to ask for an attorney won’t generally cut it. For instance, saying something like “Maybe I should talk to a lawyer” won’t stop police questioning, as officers aren’t required to clarify the suspect’s intent.

Once the person clearly states they want to speak to an attorney or have one appointed, police must not ask any more questions until they provide counsel to the suspect.

What Happens If Police Fail to Give a Miranda Warning?

Many people believe that if they are arrested and not read their rights, they can escape punishment. Not true. But, if the police fail to read a suspect their Miranda rights, the prosecutor can’t (for most purposes) use anything the suspect says as evidence against the suspect at trial. Of course, as with nearly all legal rules, there are exceptions.

General Rule: Can’t Use Suspect’s Statement to Prove Guilt

Without a Miranda warning, what the arrestee says in response to custodial questioning can’t be used for most purposes as evidence at trial. If the prosecutor tries to introduce the statement at trial to prove the defendant’s guilt, the defense can ask the court to stop that from happening using what’s called the exclusionary rule. Excluding evidence obtained in violation of Miranda seeks to prevent the police from abusing their power to obtain a confession.

Exceptions to the Rule: When Suspect’s Statement Can Be Used

If excluding the evidence won’t serve to deter police abuses, courts have generally allowed the evidence to be used at trial for certain purposes—even if it was obtained in violation of Miranda. Here’s where these exceptions come in.

Impeachment; sentencing. While the prosecution can’t use it to prove the crime, an un-Mirandized statement can be introduced for other purposes, such as to attack the suspect’s credibility (called impeachment). Many jurisdictions also allow the statement for sentencing purposes.

Discovery of other evidence. It’s also possible that an un-Mirandized statement could lead police to other physical evidence or a witness. The newly discovered evidence or witness testimony can be used at trial despite police finding out about it during questioning that violated Miranda.

Public safety. Finally, in dangerous situations, the “public safety” exception allows police officers to question suspects about weapons without giving a Miranda warning. If the interrogation leads the police to a weapon, it can be used against the suspect at trial. (N.Y. v. Quarles, 467 U.S. 649 (1984).)

Miranda Rights FAQ

The Miranda rule is complex, and no one article can address all the ins and outs. But, if you’re still looking for information, check out these answers to frequently asked questions on Miranda rights.

• Can you invoke your Miranda rights after answering police questions?
• Is there a time limit to claim Miranda rights?
• Can you waive your Miranda rights?
• Can police continue questioning after a person invokes their Miranda rights?
• What happens if police coerce a confession or waiver?
• Do minors have Miranda rights?
• Do you have to answer police questions if you’re not a suspect?
• Is a Miranda warning a constitutional right?
• What should you do if your Miranda rights were violated?

Can you invoke your Miranda rights after answering police questions?

Yes. After receiving a Miranda warning, a detainee may invoke the rights immediately or after answering some questions. Whenever that invocation occurs, the police must stop investigative questioning. But any statements preceding the assertion of Miranda rights are likely to be admissible.

Is there a time limit to claim Miranda rights?

No, there’s no time limit to invoke Miranda rights. But if the person invokes their rights and then starts talking on their own initiative, those unprompted statements can likely be used against them.

Can you waive your Miranda rights?

Yes. Usually at the end of a Miranda warning, an officer asks the person if they understand their rights and, if so, are still willing to answer questions. If the person answers yes to both, they’ve expressly waived (given up) their Miranda rights. Implied waivers are also valid. For instance, a person who indicates they understand their rights and then starts answering questions has impliedly waived their Miranda rights.

Can police continue questioning after a person invokes their Miranda rights?

The general rule is no. Police need to stop questioning once a person clearly asserts their Miranda rights. But keep reading.

The rules are clear when it comes to the right to counsel. Once a person asks to speak with an attorney, all questioning must stop until counsel is provided. It’s a little different and less clear with the right to remain silent. Police must stop questioning a person who asserts their right to remain silent, but they can restart after a long pause (a few hours), after a break in custody, or to ask questions on a different charge. The initial assertion of the right to remain silent won’t carry over to this new or later questioning. The person must assert their right again.

What happens if police coerce a confession or waiver?

Advising a person of their Miranda rights does not allow police to use coercion tactics to force a confession or waiver of one’s rights. Miranda or no Miranda, coerced statements are not admissible as evidence.

The legal standard for an involuntary confession is whether law enforcement officers used tactics that undermined the suspect’s ability to exercise free will. This is a high standard and a difficult one for a defendant to meet. Examples of tactics that may rise to coercive include depriving someone of food, water, or use of the bathroom, causing physical harm, or threatening harm. Lying is not generally considered coercive.

Do minors have Miranda rights?

Miranda applies to juveniles just as it does to adults. So, if Miranda warnings were required but not provided before a juvenile was questioned, the minor’s statement generally can’t be used to prove the state’s case, absent an exception. The age of the child can be considered when courts evaluate whether the child was “in custody” or “knowingly and voluntarily” waived their rights.

Do you have to answer police questions if you’re not a suspect?

Police are free to approach individuals and ask them questions. Beyond identifying oneself, though, the person isn’t legally obligated to answer. Even if a person doesn’t think they’ve done anything wrong, it’s often best to say nothing or as little as possible. A person might unwittingly reveal something incriminating.

Although easier said than done (given it’s a police officer), the almost universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned by police. A person can politely tell the officer they’d prefer not to answer any questions without talking to an attorney and ask if they’re free to leave.

Is a Miranda warning a constitutional right?

No. The U.S. Supreme Court held that a Miranda warning is not a constitutional right in and of itself. Rather, the warning protects other constitutional rights. Because of this distinction, an un-Mirandized defendant can’t sue the police in civil court for a violation of civil rights (commonly called a Section 1983 lawsuit). (Vega v. Tekoh, 597 U.S. ___ (2022).)

What should you do if your Miranda rights were violated?

Talk to a criminal defense attorney. An attorney can evaluate the situation, explain whether a Miranda warning should have been given, and advise the person on what to do going forward to best protect their rights.

Getting Help After an Arrest

If you’ve been arrested or charged with a crime, talk to a lawyer. A lawyer can help you understand your constitutional rights, including those protected by the Miranda warning. It’s important to ask for a lawyer before answering any police questions or saying anything to police.