Interviewer: Is this also called “invoking the fifth amendment,” to taking the fifth?
Kevin: Yes. Those terms are synonymous. Those are basically euphemisms. The idea of Miranda rights comes from a case called “Miranda v. Arizona.” That is a United States Supreme Court case that enunciated the right to remain silent, the right to have an attorney present during questioning, the warning that any information you give to a police officer will be used as evidence against you.
Interviewer: You brought up an important point, the right to have an attorney present during questioning. When does that right come into play?
Your Right to Have an Attorney Present During Questioning
Kevin: The right to have an attorney present comes into play as soon as you’re arrested. Once you’re arrested and the officer does give you proper Miranda warnings, you don’t have to say a word from that moment on.
As I said before, you don’t have to say an incriminating word at any point. You can ask for your attorney throughout an investigation. There’s no obligation to provide an attorney to somebody who’s arrested at any point.
The person who’s arrested can certainly invoke his right to have an attorney present when questioning. For all practical purposes during a DUI investigation, that will mean that the officer just stops asking any questions.
They won’t allow drivers to call attorneys until the investigation is concluded, including the breath testing or taking a blood sample.
Field Sobriety and Chemical Testing Are Not Considered Part of Questioning
Interviewer: Breath tests or blood tests or field sobriety tests, none of them are considered “questioning?”
Kevin: Yes, that is correct. A driver does not have to be given Miranda warnings prior to field sobriety testing. The officer does not have to give Miranda warnings prior to having a driver do field sobriety testing. The officer does not need to warn or give somebody Miranda warnings prior to taking blood, urine or breath samples.
When it comes to providing bodily fluids for testing, the only thing the officer needs is a reason to arrest. The driver does not have the right to deny the officer access to his blood, breath or urine in Pennsylvania and breath in New Jersey.