Can we get your DUI dismissed if the officer didn’t read your Miranda rights to you?
Clients often ask me whether I can get their case dismissed because the officer did not read their Miranda rights to them, and, usually, the answer is no.
Officers are not required to read Miranda rights to a suspect unless they are going to question the suspect. Even then, a failure to read Miranda rights results in suppression of any statements that you made in response to questioning, but not dismissal.
But what if you were arrested for DUI?
In a DUI case in SC, it is different because police are required to read your Miranda rights to you as part of SC’s mandatory videotape law…
Can I Get My DUI Dismissed if the Officer Did Not Read My Miranda Rights?
SC’s mandatory videotape law, found in SC Code Section 56-5-2953, requires that any person charged with DUI, DUAC, or felony DUI must have their conduct at the incident site and the breath testing site recorded:
(1)(a) The video recording at the incident site must:
(i) not begin later than the activation of the officer’s blue lights;
(ii) include any field sobriety tests administered; and
(iii) include the arrest of a person for a violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights…
(2) The video recording at the breath test site must:
(a) include the entire breath test procedure, the person being informed that he is being video recorded, and that he has the right to refuse the test;
(b) include the person taking or refusing the breath test and the actions of the breath test operator while conducting the test; and
(c) also include the person’s conduct during the required twenty-minute pre-test waiting period, unless the officer submits a sworn affidavit certifying that it was physically impossible to video record this waiting period.
Because the requirement is mandatory – note that the law says “must,” not “may” or “should” – the SC Supreme Court has held, in City of Rock Hill v. Suchenski and subsequent cases, that the remedy for a violation is dismissal of your case.
There may be exceptions in cases where it is not reasonable for the officer to read Miranda rights or produce a complete videotape.
If you were involved in an accident and are immediately rushed to the hospital, for example, or if the officer’s video equipment was malfunctioning despite reasonable efforts to maintain it, the court will excuse the failure to record if the officer provides a valid affidavit that complies with the statute.
If there is no legal justification for the officer’s failure to produce a videotape that includes the officer reading your Miranda rights to you, however, the appropriate remedy is dismissal of your DUI charges.
What Are My Miranda Rights?
The Miranda rights are an advisement of some of your constitutional rights that police are required to give to you before questioning you.
They are required by a 1966 US Supreme Court case called Miranda v. Arizona, and they are intended to provide some protection from the abusive or coercive interrogation tactics that are regularly employed by police investigators. There is no exact language that police must recite, but they should include:
- You have the right to remain silent;
- Anything you say can be used against you in court;
- You have the right to have an attorney present during questioning;
- If you cannot afford an attorney, one will be appointed to you; and
- You have the right to stop answering questions.
Are Officers Always Required to Read My Miranda Rights?
In SC, police are not required to read your Miranda rights to you in any case other than a DUI.
The law says that they must read your Miranda rights to you before questioning you if you are in police custody, but, even then, the remedy is not ordinarily dismissal of your case.
If police do not read your Miranda rights to you before questioning you while you are in custody, then, at your trial, the court should exclude any statements that you made in response to questioning.
What Does “In Custody” Mean?
If you are in a jail cell, you are in custody and police cannot question you without first reading your Miranda rights to you.
If you are walking down the street or in your home with no restraints, you are not in custody and police can question you all day long without reading your Miranda rights to you.
But what if you are detained on the side of the road, or in your home in handcuffs? Are you “in custody” then? Possibly… the courts have said that, even if you are in handcuffs, an “investigation detention” is not necessarily the same as “in custody” for purposes of Miranda.
The question is whether a reasonable person would have felt free to leave, although the courts do not always have a logical view of when a reasonable person would have felt free to leave. (Would a reasonable person feel free to leave if they are in handcuffs? If they are surrounded by five armed officers?)
The bottom line is – do not submit to questioning by police unless you have consulted with your attorney first. In response to any questions, say “I need to speak to my attorney first,” and nothing else.
In Response to Questioning
Another important part of the Miranda rule is, “in response to questioning…”
For example, if you blurt out “I wish I hadn’t killed that man,” when no one asked you a question in the first place, it doesn’t matter if the officer has read your Miranda rights to you.
If you are being arrested, whether it is for DUI, a minor magistrate court offense, or murder, do not engage the officers (or anyone) in casual conversation – anything you say can be used against you, and, if you are not being interrogated by the police while in custody, the Miranda rule will not help to get your statements excluded at your trial.
Edit: On February 23, 2022, the SC Supreme Court held in State v. Kenneth Taylor that an officer’s failure to show the reading of Miranda rights on the roadside video does not require dismissal of the charges (despite the statute’s plain language and the Court’s prior opinions on this matter).
DUI Defense Lawyer in Conway, SC
If you have been charged with DUI or DUAC in Myrtle Beach, Conway, or anywhere in the Horry County area, you may have valid defenses to the charge or there may be grounds to get your case dismissed.
Contact DUI Defense Lawyer Johnny Gardner now at (843) 248-7135 for a free consultation to find out how we can help.