I saw a clip on COPS the other day where an officer was reading miranda rights to an individual who was clearly intoxicated beyond a degree inwhich you can coherently make decisions, especially those concerning your incarceration and subsequent rights thereafter. So, my question is simple, how can a police officer read miranda rights to a drunk and still count as legal?
I’m not sure I see the point in doing it. What questioning will there be in regard to the offense? Accectance of field sobriety tests and breathalyzer tests are usually a condition that is accepted by the driver upon getting a license.
There was a discussion about this here not that long ago. Miranda only comes into play if there is going to be an interogation. Some departments have a policy that all arrestees will be mirandized regardless of if they will be questioned. Stupid policy in my opinion. This may be the case in the clip you saw. If there was not going to be an interrogation than it doesn’t matter what state the suspect was in when he was mirandized.
If the suspect was arrested or was being investigated for an alcohol related offense such as public intoxication (for those areas that have such laws) or DWI the officer of course can not be expected to wait until the suspect is sober before questioning since the intoxication is itself the reason for the investigation.
In all other cases it is not a good idea to question someone while they are intoxicated. If a lawyer could convince a judge that his client was intoxicated then there is a good chance that any answers given during interrogation would be thrown out.
Without seeing the exact clip you saw I can not tell you what exactly happened. It probably was a cop following procedure and mirandizing a suspect after an arrest. If the suspect was questioned later it would probably be after he sobered up. Miranda is usually given right before an interrogation even if it was given before.
ok, so you all are saying it could easily have been SOP to read miranda rights regardless of the situation. Just kinda CYA huh?
It is policy in many places but it is a stupid idea. Miranda is only needed for questioning. In most cases the initial officer at the scene has no need to mirandize. During an initial investigation miranda does not have to be given to everyone you talk to. If the investigation raises to the level where there is probable cause for an arrest, then an arrest will be made. The initial officer generally has no need to question the suspect after that except to answer biographical questions which are not covered under miranda. If there is no questioning then there is no need for miranda. If there needs to be any further interviews then miranda should be given before the interview and it is generally made on tape right before questioning.
Many departments make it mandatory to give the rights upon arrest. That way in a suppresion hearing it can be said that his rights were said to him at least once. To me this is a bad tactic.
but it can’t hurt to have your rights read to you, huh?
Frankly, the only alternative is to **not **read them, and no argument can be made that this is preferable.
Try me. If there is no questioning there is no reason to mirandize. If the subject is willing to waive his rights it is preferable to get him on tape saying right before the questioning so there are fewer problems down the road.
How could it hurt? Couldn’t hurt the suspect but it could hurt the investigation. Spontaneous utterences are not covered under miranda. It is good policy to have the camera and mic on while transporting a suspect, especially one accused of a serious crime. If he says “I’m glad I killed the bitch” in the back seat it can be used since it is not a response to a question. If he had just been mirandized for no reason it may stop him from making a stupid mistake. If the suspect was mirandized at arrest, during processing, given a miranda card to sign and then by detectives prior to questioning then he might start thinking “They really think it’s important that I shut up.” The SCOTUS ruling is there to make sure the suspect can make an informed decision before he agrees to speak. There is no legal requirement to pound the idea into him. Bad tactics. It makes more sense to do it once, right before questioning. If miranda is given only once but it happens only at the time of the arrest that can be a problem later on. Questioning usually happens much later and an argument can be made that the suspect didn’t remember, didn’t hear etc.
These are correct, and vastly misunderstood by the general public. The reason, I believe, is television & the movies. How many times have you watched a show where the police are still fighting with a guy, trying to get the cuffs on while reciting Miranda? :rolleyes: Completely absurd, but folks think this is how it’s done.
About 90+ percent of my arrests do not involve Miranda. And you wouldn’t believe how many people, after getting bailed out, come up and say “ha ha. I’m going to get out of this because you didn’t read me my rights”.
25 years of this and I’d still be willing to pay to see their face when their lawyer tells them I didn’t have to! 
Simple answer: The police officer is following the law that he must mirandize a suspect prior to arresting him wheteher he can hear, understand, or not. “Just doing my duty Sir.”
Cite, please.
That’s not correct. An arrested subjuect does not need to be miranda unless & until they are interviewed.
Some departments may have policies regarding it, but it’s not the law.
Yep. I would say I mirandized about 5% of the people I have arrested. Some had there rights read to them later by detectives if there was a follow up interview. The few that I have mirandized were usually because I knew an interview was coming and they wanted a signed rights card before they started questioning.
I, too, would like a cite. Particularly for the assertion that there is a law requiring a Miranda warning prior to arrest. (I’ll give you a hint: Miranda and its progeny won’t be helpful.)
Loach and pkbites, thanks for the helpful information. People are often surprised – although they shouldn’t be – that our law enforcement know the rules as well as they do. Better, in fact, than many lawyers.
This is an interesting point of distinction between US and Canadian approaches to this issue. In Canada, the right to counsel warning is required upon arrest or detention, regardless whether there is any intention to question the individual.
Interesting. What’s the reasoning, if you know? And how would you answer the OP under Canadian law – i.e., an intoxicated arrestee?
I’ve never looked at the background for the difference, but my off-the-cuff reaction is that lawyers are necessary for more than just giving advice about talking to the police - they’re also invaluable for an accused who wants to apply for bail, for example. So even though the police aren’t interrogating the accused, the accused may need the services of a lawyer.
The SCC has ruled that the right to be advised of counsel under s. 10(b) of the Charter has both an informational component, and an operational component - the police have to advise the accused of the right to counsel, and must also give the accused a reasonable opportunity to consult counsel, by providing access to a telephone, phone numbers for local lawyers, phone number of the Legal Aid duty counsel, and so on. Those principles apply whether or not the police plan on interrogating the accused.
With respect to the OP, the SCC ruled in R. v. Baig that once the police have given the warning, the onus is on the accused to show that he/she did not understand it for some reason, such as impairment.
The SCC also ruled in R. v. Clarkson that where an accused meets that onus and demonstrates that she was so impaired as to not understand the right to counsel, the police have to hold off and let her sober up before proceeding with the interrogation. In Clarkson, the accused was charged with murdering her husband, declined to consult counsel while obviously impaired, and made a criminating statement. The SCC ruled that in the circumstances, the police should have allowed her to sober up. Since they had not done so, the statement had been made without an opportunity to consult counsel. The Court excluded the statement.
Maybe things are different in Canada but I have seen very few instances where a lawyer would do you any good during or just after an arrest except to say “don’t talk”. And Miranda covers that if there is going to be any questioning. As for bail, the lawyer wouldn’t have any say in the matter. Maybe in a big city like New York you can have a surprise big name lawyer sweep into the courtroom, make a case for no bail, and get his client released. The way it works in most places, including where I work (pop. 60k) bail is set by a judge over the phone. No lawyers involved. At a later date (usually no more than 2-3 days, many times the next morning) the defendant is brought before a Superior Court judge. At that time bail can be continued or reduced. It would be a good idea to have a lawyer then but no reason to call him at 3am when you were arrested.
I have had this conversation many times:
Drunk Bastard: I know my rights, I want a lawyer!
Me: We are releasing you on a summons. As soon as we finish processing you, you can go home.
DB: I want a lawyer!
Me: There is a phone right there. I hope he charges you $200 for waking him up at 2am.