Can the police use my statements against me in a DUI case? I was not read Miranda what does that mean for a drunk driving case in Michigan?

When I handle a DUI case in Michigan, the first thing I look for is operation.  You can’t have a drunk driving case without some driving.  Most cases begin with an officer conducting a traffic stop where the operation is clear, and not contested.  If my client’s driving is not as straightforward then I’m looking for the evidence that the prosecution will use to show he/she was the driver.  

In this situation, the evidence usually comes right from my client’s mouth.  It’s usually too late to swallow these words once charged, but in the right situation, we may be able to suppress these incriminating statements.  

As a prosecutor and defense lawyer, I’ve handled cases where there is no eyewitness to driving, and the defendant makes no such admissions about driving.  That missing fact usually helps lead to a very favorable plea deal, or a strong defense at trial.  

Hearsay does not apply to the charged defendant in Michigan.  A police officer can take the stand and testify that the defendant admitted to driving.  In respect to that, the 5th Amendment protects the defendant from making any admissions, but most are voluntary without knowledge of the ramifications.  

This situation pops up a lot with my clients.  My client tells me that they were not read their Miranda rights. They wonder if this alone could lead to a dismissal, and the answer is generally no.  It may not even be required in the case depending on when the statements were made.  

When you’re pulled over by a police officer, or an officer pulls up along side an accident, the officer is allowed to ask questions to get information.  Let’s assume my client is standing outside of his car with two friends when the police arrive.  At this point there is no direct evidence of who was driving but rather only circumstantial evidence.  

The cop says to my client, where were you coming from? My client answers.   The cop says, how did you hit the guardrail? My client answers.  At this point, my client has admitted to driving.  These statements are likely to be admissible, because they are not made during a custodial interrogation.  

In Michigan, a Custodial interrogation means questioning instigated by the police while a person is in custody, not necessarily arrested but not free to leave.  Conversations while sitting inside your own car, or standing outside the vehicle are not in custody.  There’s even case law that says when you’re sitting in a police car for “protection” or to get out of the bad weather, you’re not in custody.  
Whether a defendant is in custody for the purposes of Miranda is determined by considering the totality of the circumstances and asking whether a reasonable person in the defendant’s position would feel free to leave.

Statements made that are not in response to police questioning are not subject to the protection of Miranda. Statements that fall into this category are spontaneous utterances, statements that are nonresponsive to the question asked, and volunteered statements made not in response to any question.

Along with statements about driving, statements about drinking, leaving a bar, feeling intoxicated and other incriminating statements are usually admissible.  So what sort of technique or strategy do I use when it comes to statements?

I’m looking for a situation where the police arrive, and my client does not admit to driving.  He either doesn’t say anything or denies it.  The police will become frustrated and continue asking my client.  As this goes on, they will likely start pushing for PBT’s, field sobriety tests, threatening an arrest and other signs of authority.  At some point this struggle steps over the line, and my client in my view is now not feeling the freedom to leave, and is in custody.  Hopefully my client is smart enough to ask straight out: am I free to leave? If the cop says no then we have a great argument to suppress any statements.  A client should always force an officer to answer whether or not they are free to leave, because the officer will say no, and Miranda applies.

My client may or may not admit to driving at this point.  If he does, then we move to suppress this statement, and let the case go forward without this piece of evidence.  We can use this to have further field sobriety, and chemical tests thrown out as well as we challenge the basis of the arrest.  Or, we can use this defense at trial, because the admission of driving may be suppressed, and operation cannot be proven to the necessary legal proof.  Now there could be circumstantial evidence of driving, but at least we’ve knocked the most incriminating evidence out of the prosecutor’s evidence.  

The police can save themselves a lot of trouble by properly reading their Miranda warnings to the client, but most cops only associate the warnings when they place handcuffs on the client.  If the client speaks post Miranda well the statements may then be admissible depending on the facts of the case.