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Miranda Rights and Questions of an Incriminating Nature

Once there’s an arrest, then any questions that are being asked of the person who was arrested, which are incriminating in nature, must be preceded by Miranda warnings.

If a police officer decides to ask a driver, after cuffs are put on him, “How much did you have to drink this evening?”, then that officer was legally obligated to give Miranda warnings beforehand.

If the Miranda warnings weren’t given, then that incriminating response can’t be used against driver.

How Can You Recognize an Incriminating Question?

Interviewer: Are people supposed to know what could be incriminating or not?

Kevin: A police officer who never asked somebody a question following an arrest, does not have the obligation to give Miranda warnings.

Miranda warnings only come into play once somebody’s arrested and then the officer asks questions that call for responses that are incriminating in nature.

The Police Can Ask you Any Kind of Question if They Have Not Yet Placed You Under Arrest

Interviewer: The police can ask you 8 million things but, if they haven’t arrested you or they haven’t really detained you, they can ask you anything they feel like and if you answer, you’re not protected by Miranda?

Kevin: That’s right. There are certain situations, as well, where someone can be under arrest but he or she “blurts out” information without being asked a question first.  That information can be used as evidence.

Any Information Freely Given Is Not Protected By Miranda

If the officer never gave that person Miranda warnings and then never asked a question, but the driver decides to say incriminating things such as, “I should never have been driving, because I had too much alcohol,” then the driver is out of luck concerning getting the statement thrown out. This is because there is no Miranda requirement concerning a driver’s unsolicited admissions.

Likewise, as you mentioned, during the pre-arrest, an officer can ask as many questions as he or she wants. If the driver answers those questions, then those responses can certainly be used against him or her as evidence, even though Miranda wasn’t given.

The real key to the issue of Miranda is whether the person was under arrest.

By Kevin Leckerman

Attorney Kevin Lekerman
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