Fort Lauderdale criminal defense attorney Adam Rossen explains how Miranda Rights refer to your constitutional right to remain silent and your right to an attorney. He talks about how to invoke this right, what they mean, and when it could be wise to remain silent.
When police ‘Mirandize’ or give the Miranda Warning to someone, the typical wording used is:
“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 an attorney, 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?”
Basically, this ensures your right to:
- Remain silent
- To have an attorney present during all and any questioning
When do Miranda Rights Actually Apply and Become Relevant in Florida?
Miranda rights apply when an individual is in custody and being interrogated by the police.
Miranda warnings do NOT apply when:
- Someone waives their Miranda rights
- When a lawyer is present
- When you are not in custody (i.e. at the time a person is arrested)
- When you are not being interrogated
- When you provide the police with a voluntary and/or spontaneous statement
- When law enforcement is acting in an undercover scenario
What Classifies as Being in Custody? How do I Know when my Miranda Rights Apply in Fort Lauderdale?
Under past Supreme Court decisions, the test for whether or not you are in custody is whether you are deprived of freedom of action in any significant way.
You are also officially in custody if you’re told you’re under arrest or there are indications that you’re under arrest. Courts will consider several factors, but what matters is your objective view at the time of the stop or arrest.
Courts look at manifested thoughts (AKA what the officer said to you) and whether things occurred or were said to make an individual think that they were in custody.
For example, if you are put in handcuffs, or told that you are not free to leave, or you are in the back of a police car, it is more likely that a court will find that you were in custody for the purposes of Miranda Rights to apply to you. However, this is not guaranteed. Even if you are found to be in custody, you must prove you were also being interrogated at the time in order for the court to rule that your Miranda Rights were violated.
How Do I Know if I’m Being Interrogated?
This is a tricky question that many courts also struggle to answer.
Under previous Supreme Court decisions, interrogation is defined as express questioning or any words/actions on the police’s part that they should know would be reasonably likely to elicit an incriminating response, as found in Rhode Island v. Innis.
This basically means if police officers ask you questions that they would reasonably know would be met with an answer that would incriminate you in a crime, you are being interrogated in the eyes of most courts. If police officers ask you “Did you just come from ‘X’ place where you committed ‘Y’ crime?,” that could be considered to be express questioning which would be classified as interrogation for the purposes of your Miranda Rights.
Big Picture: When Should I be Read Miranda Rights in Florida?
Police, Law Enforcement, etc., should read you your Miranda warnings when you are formally in custody and when you face custodial interrogation.
When a law enforcement officer stops you, you should ask whether or not you are in custody. In other words, you can ask an officer, “Am I under arrest? Am I free to go?”
That can help clarify whether or not your Miranda Rights need to be read to you. Distinctions regarding whether or not you’re in custody or being interrogated is important because both must be satisfied in order for your Miranda warnings to apply. If you’re not in custody and not being interrogated, your Miranda Rights don’t officially apply, which means that your Miranda Rights cannot be violated unless those two elements are satisfied.
How Can I Invoke my Miranda Rights to Law Enforcement in Florida?
For Miranda Rights to apply, you must be both in custody and undergoing interrogation (questioning) by police or law enforcement.
You cannot invoke your Miranda Rights if you are not in custody AND not being interrogated. To invoke your Miranda rights, you must expressly say so.
Staying silent is not sufficient to invoke the protections of your Miranda Rights and could actually be used against you if you do not expressly say that you are invoking your Miranda Rights.
It sounds counterintuitive – that you must speak up to invoke your Miranda Right to stay silent, but it’s what courts have decided is necessary. If you are interrogated in custody, it’s OK to say, “I have been read my Miranda rights, and I understand what they mean. I am choosing to invoke my right to remain silent and retain counsel now.” You could even simply say: “I have the right to remain silent.”
That is a clear-cut way to protect yourself; however, you MUST STAY SILENT after invoking your Miranda rights. If you speak up after invoking your Miranda rights, courts have found that it constitutes a waiver of your rights, and they will no longer be able to be used to protect you from further interrogation.
It is important to know police officers also have the ability to re-approach you after a period of time to ask you again if you are willing to talk to them.
They will likely re-read your Miranda Rights and ask you again if you wish to talk to them. It is important to repeat at this time that you were read your Miranda Rights, you understand them, and you are still choosing to invoke your right to remain silent and retain counsel before you speak to them.
You have to make it extremely clear that you are not talking to police (etc.) under any circumstances until you have a lawyer by your side or have contacted one about what you should do next.
I Got Pulled Over for DUI (Driving Under the Influence) in Florida but was not Read my Miranda Rights – Is That Allowed?
Unfortunately, yes. When an officer pulls you over, it is usually because they reasonably suspected you were violating a traffic law or some other minor infraction. When police pull you over for a stop, they do not have to read your Miranda Rights before asking you any questions.
Police are allowed to ask questions such as:
- Where are you coming from?
- What’s your name?
- Where do you live?
- Did you have any drinks tonight?
However, it is important to note that you can refuse to answer those questions because you are not in formal custody when you are stopped for a roadside routine traffic stop, as ruled in Berkemer v. McCarty, 468 U.S. 420 (1984).
If cops ask you questions intentionally meant to get you to incriminate yourself, such as “Have you been drinking?”, those are meant to get the officer information that you engaged in an illegal activity.
Simple questions, however, are not enough to establish that you’re being interrogated. It also depends on whether other officers have arrived on-scene to conduct a DUI investigation because that shows that the interaction is moving past a routine traffic stop. At that point, officers do need to read you your Miranda Rights if they are officially beginning a DUI Investigation.
It is important to know, you still can refuse questioning even before formal custody – but let the officer know you are choosing to invoke your right to remain silent.
In Florida, there is ABSOLUTELY NO NEGATIVE CONSEQUENCE for refusing to do the field sobriety exercises. The only consequence is that police will have no, or far less, evidence against you – which is a good thing. We recommend that you don’t even do Field Sobriety Exercises or tests even if you’re completely sober.
Additionally, you have the right to refuse a breathalyzer or breath test in Florida. There are some consequences to this, however, especially if you’ve already refused a breath test in the past, so it’s important to know the consequences and make an informed decision on whether or not you consent to a breath test.
If you are arrested for DUI in Florida, another thing you need to know right away is that you only have 10 days to save your license.
Conclusion: You have the right to an attorney. Talk to a criminal defense attorney if you think your rights were violated.
All of this information is circumstantial – every case is different, and every individual will react differently in the situation.
It is important to contact an experienced criminal defense attorney to help walk you through what happened in your particular case, arrest, or circumstance in order to fight a possible Miranda Rights’ violation.
Call Rossen Law Firm today for a FREE strategy session to discuss your case and learn how we could defend you and your specific case.
Call to schedule your FREE Consultation today:
- Fort Lauderdale: 754-206-6200
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