Miranda Warnings and the Right to Counsel in DWI cases

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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