New Jersey Criminal and DWI Lawyer & Attorney : John Marshall Law Firm : Drunk Driving, DUI : Monmouth County, Middlsex County, Union County, New Jersey

Many times clients ask about the famous "Miranda" warnings and the validity of their DWI charges if the law enforcement officers failed to give the Miranda warnings at certain points. There are a few landmark New Jersey Supreme Court cases on point addressing these issues. First, the taking of a breath test is non-testimonial in nature and is not covered by the privilege against self-incrimination. State v. Stever, 107 N.J. 543 (1987). Because of the non-testimonial nature of the breathalyzer evidence, there is no requirement that Miranda warnings be given advising the offenders of the right to remain silent. Furthermore, there is no right to consult an attorney or to be advised of Miranda warnings prior to submitting to a breathalyzer test. State v. Leavitt, 107 N.J. 534 (1987). Finally, in State v. Macuk, 57 N.J. 1 (1970), the court held that the taking of a breath sample is non-testimonial in nature. Accordingly, a driver accused of driving while under the influence of alcohol has no right to consult an attorney before determining whether to comply with the legal obligation to submit to a breathalyzer test.

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The right to remain silent and the right to counsel are implied rights grounded in the self-incrimination clause of the 5^th amendment. The landmark case of Miranda v. Arizona was decided by the United States Supreme Court in 1966 which held that statements obtained from defendants during incommunicado interrogation in police-dominated atmosphere, without full warning of constitutional rights, were inadmissible as having been obtained in violation of Fifth Amendment privilege against self-incrimination. There are three requirements that trigger Miranda protections: 1) Custody; 2) Interrogation; 3) Testimonial. For a custody situation to occur, the standard is whether a reasonable person would not feel free to leave because of an atmosphere infused by police domination and coercion. Custodial situations can arise in a person’s home while non-custodial situations can occur at the police station; the location is not dispositive of whether or not the situation was custodial. The standard for whether or not interrogation occurred is if the officers knew or should have known that his/her conduct made it likely that the person would incriminate themselves (this standard comes from Innis). Finally, the Miranda protections do not apply to things other than testimony: lineups do not necessitate Miranda protections because they are just displaying physical characteristics.

            A defendant’s Miranda rights can be waived through an express or implied waiver. This waiver must be knowing and intelligent—the defendant understood their rights and the consequences of abandoning them. The waiver must also be voluntary, free from police coercion. Also, a person can waive their rights and then change their mind and invoke their rights again. Under the Edwards doctrine, if a defendant asserts their right to counsel under the 5^th amendment then there can be no further interrogation on any subject unless the defendant himself initiates. Finally, the 5^th amendment is not offense specific: An assertion of your right to counsel applies to any criminal activity, not only the offense you are currently charged with.

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