Interviewer: What about if someone says to the police, “You didn’t read me my Miranda rights,” or “I don’t know if I should answer you because of my Miranda rights.” They’re essentially asking the police to advise them of their rights. What happens then?
Kevin: Certainly, a driver can mention that to the police officer and then refuse to answer any questions until Miranda warnings are given. In my experience, most clients who mention Miranda, prior to answering any questions asked by the police officer, are wise enough to remain silent even after the officer provided the proper Miranda warnings.
Your Pre-Arrest Refusal to Answer Questions May Not Be Used Against You at Trial
There’s also an issue with pre-arrest silence. I mentioned previously that a driver can say nothing in response to a police officer’s questions at any moment during the investigation.
However, at trial, a person may then try to use a defense that involves information that was not given to the police officer during questioning, prior to being arrested.
The courts have generally deemed that pre-arrest silence cannot be used against the person in court to show that he was fabricating his defense at trial.
In other words, if I never tell a police officer during the investigative detention that I have a lot of medical issues that would prevent me from doing field sobriety tests and I also refused to do the field sobriety test. Then, I bring in a doctor at trial as part of my defense to show that I have multiple medical issues that would have affected my ability to walk and balance, the failure to mention that information prior to arrest should not be used as evidence that the person is lying at trial.