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Must the police read me my Miranda Rights in a San Diego DUI?

On Behalf of | Feb 12, 2014 | Firm News |

When speaking to my clients about their case I frequently am told the “officer never read me my Miranda rights when he asked me out of the car”.  Despite common misperceptions…due in large part to what we see in television shows and movies…there is no blanket legal requirement for police officers to read Miranda rights during a San Diego DUI arrest.

These rights, which in essence advise you of your “right to remain silent” must only be given if you are (1) in police custody, and (2) being interrogated.

If either of these conditions isn’t satisfied, the fact that you weren’t read your Miranda rights will not serve as a San Diego DUI.

However, if you were in custody and the police interrogated you without first advising you of these rights, your San Diego DUI defense attorney will likely have any statements made during that time excluded from evidence.

What are Miranda Rights in the DUI context?

The name “Miranda” stems from a U.S. Supreme Court case Miranda v. Arizona.  Although this case didn’t set forth an exact wording for these rights, it established the fact that you must be advised of your Fifth Amendment right to remain free from self-incrimination if the following two conditions are met: (1) you are under arrest, and (2) the officer conducts a “custodial interrogation”.1

Miranda rights typically consist of the following statements:  “You have the right to remain silent.  Anything you say can and will be used against you in a court of law.  You have the right to speak with an attorney.  If you cannot afford one, one will be appointed to you at no cost.”

If the above two conditions (that you have been arrested and are being interrogated) aren’t met, then there is no requirement for the officer to advise you of these rights.

However, if these conditions have been satisfied… and the officer asks you questions without first advising you of your Miranda rights…your San Diego DUI defense attorney should be able to have your answers suppressed from evidence.  This is critical when it comes to fighting a San Diego DUI.

But it must be noted that if the officer did advise you of your rights, any statements you subsequently made will be admissible as evidence against you.

The difference between a San Diego DUI “ intoxication investigation” and a San Diego DUI “interrogation”

A typical San Diego DUI investigation is considered just that…an investigation.  So if the officer legally pulls you over and begins asking you questions such as

  • were you drinking?
  • what were you drinking?
  • how much did you drink? And
  • what time were you drinking?

the officer is well within his/her authority to do. “The little known fact is that you do not have to answer these DUI questions…and it is often better for you if you politely refuse to do so.”

The reason that the officer is entitled to question you at this point is because up until you are actually arrested for Vehicle Code 23152(a), the officer is simply gathering information to determine whether an arrest is appropriate.  This is what’s known as the “investigation”.

An investigation takes place when legally, though not practically speaking, you are free to leave.  And although you are not allowed to contact an attorney at this stage in the investigation, you can politely inform the officer that you have been advised to remain silent. However, most people do not want to cause waves and they talk to the officer (which is not a good idea).

Once you are handcuffed…and are therefore no longer permitted to leave…your Miranda rights may kick in.  That is, if the officer asks you more questions that are designed to elicit incriminating responses about your DUI.  This is what’s known as a “custodial interrogation”.

During a custodial interrogation, you have the right to remain silent.  You also have the right to consult with an attorney before answering any questions.  If you are advised of your Miranda rights…and choose to speak with the San Diego DUI officer…any statements you make can be used against you.

If the San Diego DUI officer fails to advise you of your Miranda rights…and asks you questions that are designed to elicit incriminating responses…your San Diego DUI attorney will most likely prevail on a motion to exclude those responses from evidence.

If, however, the San Diego DUI officer fails to advise you of your Miranda rights…and engages you in a casual conversation…any incriminating statements that you make will likely be used against you.  And so it bears repeating…in order to receive Miranda protection, the officer must interrogate you.  This means that a casual conversation (even if contrived) may not rise to the level of this Fifth Amendment protection.

It is also important to note that if you choose to remain silent, your silence cannot be used against you.

If the San Diego DUI cops violate my Miranda Rights, does all the evidence get thrown out of court?

Unfortunately, no. Miranda rights only apply to testimonial (that is, verbal) evidence.  This means that in a San Diego DUI investigation, evidence of your

  • driving pattern,
  • physical appearance (examples include slurred speech, red/watery eyes, and a lack of balance),
  • performance on field sobriety tests, and
  • blood alcohol concentration (BAC) as reported by a chemical blood or breath test,

are all admissible regardless of whether the officer informs you of your Miranda rights.  Only actual, verbal statements are protected by the Miranda advisement.
Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected]   You may also find helpful information in our related articles on Vehicle Code 23152a Driving Under the Influence, and Fighting a San Diego DUI.

Legal References:

1Miranda v. Arizona, (1966) 384 U.S. 436, 444.  (“…the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.  As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”)

Berkemer v. McCarty – 468 U.S. 420 (1984)

The full article can be found here.

U.S. Supreme Court

Berkemer v. McCarty, 468 U.S. 420 (1984)

Berkemer v. McCarty

No. 83-710

Argued April 18, 1984

Decided July 2, 1984

468 U.S. 420




After observing respondent’s car weaving in and out of a highway lane, an officer of the Ohio State Highway Patrol forced respondent to stop and asked him to get out of the car. Upon noticing that respondent was having difficulty standing, the officer concluded that respondent would be charged with a traffic offense and would not be allowed to leave the scene, but respondent was not told that he would be taken into custody. When respondent could not perform a field sobriety test without falling, the officer asked him if he had been using intoxicants, and he replied that he had consumed two beers and had smoked marihuana a short time before. The officer then formally arrested respondent and drove him to a county jail, where a blood test failed to detect any alcohol in respondent’s blood. Questioning was then resumed, and respondent again made incriminating statements, including an admission that he was “barely” under the influence of alcohol. At no point during this sequence was respondent given the warnings prescribed by Miranda v. Arizona, 384 U. S. 436. Respondent was charged with the misdemeanor under Ohio law of operating a motor vehicle while under the influence of alcohol and/or drugs, and when the state court denied his motion to exclude the various incriminating statements on the asserted ground that their admission into evidence would violate the Fifth Amendment because respondent had not been informed of his constitutional rights prior to his interrogation, he pleaded “no contest,” and was convicted. After the conviction was affirmed on appeal by the Franklin County Court of Appeals and the Ohio Supreme Court denied review, respondent filed an action in Federal District Court for habeas corpus relief. The District Court dismissed the petition, but the Court of Appeals reversed, holding that Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated is a felony or a misdemeanor traffic offense, and that respondent’s post-arrest statements, at least, were inadmissible.


1. A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which

468 U. S. 428-435.

2. The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute “custodial interrogation” for the purposes of the Miranda rule. Although an ordinary traffic stop curtails the “freedom of action” of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. A traffic stop is usually brief, and the motorist expects that, while he may be given a citation, in the end, he most likely will be allowed to continue on his way. Moreover, the typical traffic stop is conducted in public, and the atmosphere surrounding it is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Mirandaand subsequent cases in which Miranda has been applied. However, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. In this case, the initial stop of respondent’s car, by itself, did not render him “in custody,” and respondent has failed to demonstrate that, at any time between the stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Although the arresting officer apparently decided as soon as respondent stepped out of his car that he would be taken into custody and charged with a traffic offense, the officer never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the

468 U. S. 435-442.

3. A determination of whether the improper admission of respondent’s postarrest statements constituted “harmless error” will not be made by this Court for the cumulative reasons that (i) the issue was not presented to the Ohio courts or to the federal courts below, (ii) respondent’s admissions made at the scene of the traffic stop and the statements he made at the police station were not identical, and (iii) the procedural posture of the case makes the use of harmless error analysis especially difficult, because respondent, while preserving his objection to the denial of his pretrial motion to exclude the evidence, elected not to contest the prosecution’s case against him and thus has not yet had an opportunity to try to impeach the State’s evidence or to present evidence of his own. Pp. 468 U. S. 442-445.

716 F.2d 361, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O’CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post,p. 468 U. S. 445.

JUSTICE MARSHALL delivered the opinion of the Court.

This case presents two related questions: First, does our decision in Miranda v. Arizona,384 U. S. 436 (1966), govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic

Footnote 1] The test did not detect any alcohol whatsoever in respondent’s system. Williams then resumed questioning respondent

Footnote 2] He was sentenced to 90

Footnote 3] The District Court dismissed the petition, holding that

Miranda warnings do not have to be given prior to in-custody interrogation of a suspect arrested for a traffic offense.”

McCarty v. Herdman, No. C-2-81-1118 (Dec. 11, 1981).

A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that

Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense.”

McCarty v. Herdman, 716 F.2d 361, 363 (1983) (emphasis in original). In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest. [Footnote 4] The postarrest statements, the court ruled, were

Footnote 5] “Because [respondent] was convicted on inadmissible evidence,” the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. Ibid.[Footnote 6] However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial. We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in

Footnote 7] and to questioning of motorists detained pursuant to traffic stops. [Footnote 8] 464 U.S. 1038 (1984).

378 U. S. 1378 U. S. 8 (1964).

In Miranda v. Arizona, 384 U. S. 436 (1966), the Court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. The Court held:

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the

384 U. S. 444 (footnote omitted).

In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt. [Footnote 9See, e.g., Estelle v. Smith, 451 U. S. 454451 U. S. 466-467 (1981); Rhode Island v. Innis, 446 U. S. 291446 U. S. 297-298 (1980) (dictum); Orozco v. Texas, 394 U. S. 324394 U. S. 326-327 (1969); Mathis v. United States, 391 U. S. 1391 U. S. 3-5 (1968). [Footnote 10]

Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him. [Footnote 11] We cannot agree.

442 U. S. 707442 U. S. 718 (1979).

The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under Ohio law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, Ohio Rev.Code Ann. §§ 2903.07, 4511.99 (Supp.1983), while reckless vehicular homicide is a felony, § 2903.06 (Supp.1983). When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed

Footnote 12] or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect. [Footnote 13]

Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner’s proposal would be Byzantine. Difficult questions quickly spring to mind: for instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters; [Footnote 14] at what point in the evolution of an affair of this sort would the police be obliged to give Mirandawarnings to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense

Footnote 15] The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations. [Footnote 16] Neither the police nor criminal defendants would benefit from such a development.

Absent a compelling justification, we surely would be unwilling so seriously to impair the simplicity and clarity of the holding of Miranda. Neither of the two arguments proffered by petitioner constitutes such a justification. Petitioner first contends thatMiranda warnings are unnecessary when a suspect is questioned about a misdemeanor traffic offense, because the police have no reason to subject such a suspect to the sort of interrogation that most troubled the Court in Miranda. We cannot agree that the dangers of police abuse are so slight in this context. For example, the offense of driving while intoxicated is increasingly regarded in many jurisdictions as a very serious matter. [Footnote 17] Especially when the intoxicant at issue is a narcotic drug, rather than alcohol, the police sometimes have difficulty obtaining evidence of this crime. Under such circumstances, the incentive for the police to try to induce the defendant to incriminate

468 U. S. 431-432.

We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly, and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, [Footnote 18] to relieve the “inherently compelling pressures’” generated by the custodial setting itself, “`which work to undermine the individual’s will to resist,’” [Footnote 19] and, as much as possible, to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. [Footnote 20] Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies.

Footnote 21] regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.

The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was “in custody” at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of

Footnote 22] on the ground that Miranda, by its terms, applies whenever “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,“ 384 U.S. at 384 U. S. 444 (emphasis added); see id. at 384 U. S. 467. [Footnote 23]

Footnote 24] Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. [Footnote 25] Partly for these reasons, we have long acknowledged that

“stopping an automobile and detaining its occupants constitute a ‘seizure’

440 U. S. 648440 U. S. 653 (1979) (citations omitted).

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely,” Miranda v. Arizona, 384 U.S. at 384 U. S. 467. First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees a policeman’s light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that, in the end, he most likely will be allowed to continue on his way. [Footnote 26] In this respect,

384 U. S. 451. [Footnote 27]

Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere

384 U. S. 445384 U. S. 491-498, and in the subsequent cases in which we have appliedMiranda. [Footnote 28]

In both of these respects, the usual traffic stop is more analogous to a so-called “Terrystop,” see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. [Footnote 29] Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly [Footnote 30] in order to “investigate the circumstances that provoke suspicion.”United States v. Brignoni-Ponce, 422 U. S. 873422 U. S. 881 (1975). “[T]he stop and inquiry must be reasonably related in scope to the justification for their initiation.’” Ibid.(quoting Terry v. Ohio, supra, at 392 U. S. 29.) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, [Footnote 31] he must then be

Footnote 32] The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.

Respondent contends that to “exempt” traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorists, and will subject them to sustained and intimidating interrogation at the scene of their initial detention. Cf. State v. Roberti, 293 Ore. 59, 95, 644 P.2d 1104, 1125 (1982) (Linde, J., dissenting) (predicting the emergence of a rule that “a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons”), withdrawn on rehearing, 293 Ore. 236, 646 P.2d 1341 (1982),cert. pending, No. 82315. The net result, respondent contends, will be a serious threat to the rights that the Miranda doctrine is designed to protect.

We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.”California v. Beheler, 463 U. S. 1121463 U. S. 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492,429 U. S. 495 (1977) (per curiam).

Footnote 33] The second would enable the police to circumvent the constraints on custodial interrogations established by Miranda.

Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent’s car, by itself, rendered him “in custody.” And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. [Footnote 34] At no point during that interval was respondent

Footnote 35] Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to “custodial interrogation” at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. [Footnote 36] Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.

We conclude, in short, that respondent was not taken into custody for the purposes ofMiranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him.


We are left with the question of the appropriate remedy. In his brief, petitioner contends that, if we agree with the

386 U. S. 18 (1967). Relying on Milton v. Wainwright, 407 U. S. 371 (1972), petitioner argues that the statements made by respondent at the police station “were merely recitations of what respondent had already admitted at the scene of the traffic arrest,” and therefore were unnecessary to his conviction. Brief for Petitioner 25. We reject this proposed disposition of the case for three cumulative reasons.

First, the issue of harmless error was not presented to any of the Ohio courts, to the District Court, or to the Court of Appeals. [Footnote 37] Though, when reviewing a judgment of a federal court, we have jurisdiction to consider an issue not raised below,see Carlson v. Green, 446 U. S. 14446 U. S. 17, n. 2 (1980), we are generally reluctant to do so, Adickes v. S. H. Kress & Co., 398 U. S. 144398 U. S. 147, n. 2 (1970). [Footnote 38]

Second, the admissions respondent made at the scene of the traffic stop and the statements he made at the police station were not identical. Most importantly, though respondent at the scene admitted having recently drunk beer and smoked marihuana, not until questioned at the station did he

Footnote 39] This fact assumes significance in view of the failure of the intoxilyzer test to discern any alcohol in his blood.

Third, the case arises in a procedural posture that makes the use of harmless error analysis especially difficult. [Footnote 40] This is not a case in which a defendant, after denial of a suppression motion, is given a full trial resulting in his conviction. Rather, after the trial court ruled that all of respondent’s self-incriminating statements were admissible, respondent elected not to contest the prosecution’s case against him, while preserving his objection to the denial of his pretrial motion. [Footnote 41] As a result, respondent has not yet had an opportunity to try to impeach the State’s evidence or to present evidence of his own. For example, respondent alleges that, at the time of his arrest, he had an injured back and a limp, [Footnote 42] and that those ailments accounted for his difficulty getting out of the car and performing the balancing test; because he pleaded “no contest,” he never had a chance to make that argument to a jury. It is difficult enough, on the basis of a complete record of a trial and the parties’ contentions regarding the relative importance of each portion of the evidence presented, to determine whether the erroneous admission of particular material affected the outcome. Without the benefit of such a record in this case, we decline to rule that

386 U. S. 24. Accordingly, the judgment of the Court of Appeals is


[Footnote 1]

For a description of the technology associated with the intoxilyzer test, see California v. Trombetta, 467 U. S. 479467 U. S. 481-482 (1984).

[Footnote 2]

Ohio Rev.Code Ann. § 2937.07 (1982) provides, in pertinent part:

“If the plea be ‘no contest’ or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge or magistrate may make [a] finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly.”

“Ohio Rule of Criminal Procedure 12(H) provides:”

“The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence.”

[Footnote 3]

On respondent’s motion, the state trial court stayed execution of respondent’s sentence pending the outcome of his application for a writ of habeas corpus. State v. McCarty,No. 80-TF-C-123915 (Franklin County Mun.Ct., July 28, 1981).

[Footnote 4]

In differentiating respondent’s various admissions, the Court of Appeals accorded no significance to the parties’ stipulation that respondent’s “freedom to leave the scene was terminated” at the moment Trooper Williams formed an intent to arrest respondent. The court reasoned that a “reasonable man’ test,” not a subjective standard, should control the determination of when a suspect is taken into custody for the purposes of Miranda. McCarty v. Herdman, 716 F.2d at 362, n. 1 (quoting Lowe v. United States, 407 F.2d 1391, 1397 (CA9 1969)).

[Footnote 5]

Judge Wellford, dissenting, observed: “As I read the opinion, the majority finds that McCarty was not in custody until he was formally placed under arrest.” 716 F.2d at 364. The majority neither accepted nor disavowed this interpretation of its ruling.

[Footnote 6]

Judge Wellford’s dissent was premised on his view that the incriminating statements made by respondent after he was formally taken into custody were “essentially repetitious” of the statements he made before his arrest. Reasoning that the prearrest statements were admissible, Judge Wellford argued that the trial court’s failure to suppress the postarrest statements was “harmless error.” Id. at 365.

[Footnote 7]

In Clay v. Riddle, 541 F.2d 456 (1976), the Court of Appeals for the Fourth Circuit held that persons arrested for traffic offenses need not be given Miranda warnings. Id. at 457. Several state courts have taken similar positions. See State v. Bliss, 238 A.2d 848, 850 (Del.1968); County of Dade v. Callahan, 259 So.2d 504, 507 (Fla.App.1971), cert. denied, 265 So.2d 50 (Fla.1972); State v. Gabrielson, 192 N.W.2d 792, 796 (Iowa 1971), cert. denied, 409 U.S. 912 (1972); State v. Angelo, 251 La. 250, 254-255, 203 So.2d 710, 711-717 (1967); State v. Neal, 476 S.W.2d 547, 553 (Mo.1972); State v. Macuk, 57 N.J. 1, 15-16, 268 A.2d 1, 9 (1970). Other state courts have refused to limit in this fashion the reach of Miranda. See Campbell v. Superior Court, 106 Ariz. 542, 552, 479 P.2d 685, 695 (1971); Commonwealth v. Brennan, 386 Mass. 772, 775, 438 N.E.2d 60, 63 (1982); State v. Kinn, 288 Minn. 31, 35, 178 N.W.2d 888, 891 (1970);State v. Lawson, 285 N.C. 320, 327-328, 204 S.E.2d 843, 848 (1974); State v. Fields,294 N.W.2d 404, 409 (N.D.1980) (Miranda applicable at least to “more serious [traffic] offense[s] such as driving while intoxicated”); State v. Buchholz, 11 Ohio St.3d 24, 28, 462 N.E.2d 1222, 1226 (1984) (overruling State v. Pyle, 19 Ohio St.2d 64, 249 N.E.2d 826 (1969), cert. denied, 396 U.S. 1007 (1970), and holding that “Miranda warnings must be given prior to any custodial interrogation regardless of whether the individual is suspected of committing a felony or misdemeanor”); State v. Roberti, 293 Ore. 59, 644 P.2d 1104, on rehearing, 293 Ore. 236, 646 P.2d 1341 (1982), cert. pending, No. 82-315; Commonwealth v. Meyer, 488 Pa. 297, 305-306, 412 A.2d 517, 521 (1980);Holman v. Cox, 598 P.2d 1331, 1333 (Utah 1979); State v. Darnell, 8 Wash.App. 627, 628, 508 P.2d 613, 615, cert. denied, 414 U.S. 1112 (1973).

[Footnote 8]

The lower courts have dealt with the problem of roadside questioning in a wide variety of ways. For a spectrum of positions, see State v. Tellez, 6 Ariz. App. 251, 256, 431 P.2d 691, 696 (1967) (Miranda warnings must be given as soon as the policeman has “reasonable grounds” to believe the detained motorist has committed an offense);Newberry v. State, 552 S.W.2d 457, 461 (Tex.Crim.App.1977) (Miranda applies when there is probable cause to arrest the driver and the policeman “consider[s the driver] to be in custody and would not . . . let him leave”); State v. Roberti, 293 Ore., at 236, 646 P.2d at 1341 (Miranda applies as soon as the officer forms an intention to arrest the motorist); People v. Ramirez, 199 Colo. 367, 372, n. 5, 609 P.2d 616, 618, n. 5 (1980) (en banc); State v. Darnell, supra, at 629-630, 508 P.2d at 615 (driver is “in custody” for Miranda purposes at least by the time he is asked to take a field sobriety test); Commonwealth v. Meyer, supra, at 307, 412 A.2d at 521-522 (warnings are required as soon as the motorist “reasonably believes his freedom of action is being restricted”); Lowe v. United States, supra, at 1394, 1396; State v. Sykes, 285 N.C. 202, 205-206, 203 S.E.2d 849, 850 (1974) (Miranda is inapplicable to a traffic stop until the motorist is subjected to formal arrest or the functional equivalent thereof);Allen v. United States, 129 U.S.App.D.C. 61, 63-64, 390 F.2d 476, 478-479 (“[S]ome inquiry can be made [without giving Miranda warnings] as part of an investigation notwithstanding limited and brief restraints by the police in their effort to screen crimes from relatively routine mishaps”), modified, 131 U.S.App.D.C. 358, 404 F.2d 1335 (1968); Holman v. Cox, supra, at 1333 (Miranda applies upon formal arrest).

[Footnote 9]

In Harris v. New York, 401 U. S. 222 (1971), the Court did sanction use of statements obtained in violation of Miranda to impeach the defendant who had made them. The Court was careful to note, however, that the jury had been instructed to consider the statements “only in passing on [the defendant’s] credibility and not as evidence of guilt.” 4 01 U.S. at 401 U. S. 223.

[Footnote 10]

The one exception to this consistent line of decisions is New York v. Quarles, 467 U. S. 649 (1984). The Court held in that case that, when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may, without informing him of his constitutional rights, ask questions essential to elicit information necessary to neutralize the threat to the public. Once such information has been obtained, the suspect must be given the standard warnings.

[Footnote 11]

Not all of petitioner’s formulations of his proposal are consistent. At some points in his brief and at oral argument, petitioner appeared to advocate an exception solely for drunken driving charges; at other points, he seemed to favor a line between felonies and misdemeanors. Because all of these suggestions suffer from similar infirmities, we do not differentiate among them in the ensuing discussion.

[Footnote 12]

Thus, under Ohio law, while a first offense of negligent vehicular homicide is a misdemeanor, a second offense is a felony. Ohio Rev.Code Ann. § 2903.07 (Supp.1983). In some jurisdictions, a certain number of convictions for drunken driving triggers a quantum jump in the status of the crime. In South Dakota, for instance, first and second offenses for driving while intoxicated are misdemeanors, but a third offense is a felony. See Solem v. Helm, 463 U. S. 277463 U. S. 280, n. 4 (1983).

[Footnote 13]

Cf. Welsh v. Wisconsin, 466 U. S. 740466 U. S. 761 (1984) (WHITE, J., dissenting) (observing that officers in the field frequently “have neither the time nor the competence to determine” the severity of the offense for which they are considering arresting a person).

It might be argued that the police would not need to make such guesses; whenever in doubt, they could ensure compliance with the law by giving the full Miranda warnings. It cannot be doubted, however, that in some cases, a desire to induce a suspect to reveal information he might withhold if informed of his rights would induce the police not to take the cautious course.

[Footnote 14]

See, e.g., United States v. Schultz, 442 F.Supp. 176 (Md.1977) (investigation of erratic driving developed into inquiry into narcotics offenses and terminated in a charge of possession of a sawed-off shotgun); United States v. Hatchel, 329 F.Supp. 113 (Mass.1971) (investigation into offense of driving the wrong way on a one-way street yielded a charge of possession of a stolen car).

[Footnote 15]

Cf. United States v. Robinson, 414 U. S. 218414 U. S. 221, n. 1 (1973); id. at 414 U. S. 238, n. 2 (POWELL, J., concurring) (discussing the problem of determining if a traffic arrest was used as a pretext to legitimate a warrantless search for narcotics).

[Footnote 16]

Cf. New York v. Quarles, 467 U.S. at 467 U. S. 663-664 (O’CONNOR, J., concurring in judgment in part and dissenting in part).

[Footnote 17]

See Brief for State of Ohio as Amicus Curiae 18-21 (discussing the “National Epidemic Of Impaired Drivers” and the importance of stemming it); cf. South Dakota v. Neville,459 U. S. 553459 U. S. 558-559 (1983); Perez v. Campbell, 402 U. S. 637402 U. S. 657402 U. S. 672 (1971) (BLACKMUN, J., concurring in part and dissenting in part).

[Footnote 18]

See Rhode Island v. Innis, 446 U. S. 291446 U. S. 299446 U. S. 301 (1980);Miranda v. Arizona, 384 U. S. 436384 U. S. 445-458 (1966).

[Footnote 19]

Minnesota v. Murphy, 465 U. S. 420465 U. S. 430 (1984) (quoting Miranda v. Arizona, supra, at 384 U. S. 467); see Estelle v. Smith, 451 U. S. 454451 U. S. 467 (1981);United States v. Washington, 431 U. S. 181431 U. S. 187, n. 5 (1977).

[Footnote 20]

Cf. Developments in the Law — Confessions, 79 Harv.L.Rev. 935, 954-984 (1966) (describing the difficulties encountered by state and federal courts, during the period preceding the decision in Miranda, in trying to distinguish voluntary from involuntary confessions).

We do not suggest that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession. But cases in which a defendant can make a colorable argument that a self-incriminating statement was “compelled” despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.

[Footnote 21]

The parties urge us to answer two questions concerning the precise scope of the safeguards required in circumstances of the sort involved in this case. First, we are asked to consider what a State must do in order to demonstrate that a suspect who might have been under the influence of drugs or alcohol when subjected to custodial interrogation nevertheless understood and freely waived his constitutional rights. Second, it is suggested that we decide whether an indigent suspect has a right, under the Fifth Amendment, to have an attorney appointed to advise him regarding his responses to custodial interrogation when the alleged offense about which he is being questioned is sufficiently minor that he would not have a right, under the Sixth Amendment, to the assistance of appointed counsel at trial, see Scott v. Illinois, 440 U. S. 367 (1979). We prefer to defer resolution of such matters to a case in which law enforcement authorities have at least attempted to inform the suspect of rights to which he is indisputably entitled.

[Footnote 22]

In his brief, respondent hesitates to embrace this proposition fully, advocating instead a more limited rule under which questioning of a suspect detained pursuant to a traffic stop would be deemed “custodial interrogation” if and only if the police officer had probable cause to arrest the motorist for a crime. See Brief for Respondent 39-40, 46. This ostensibly more modest proposal has little to recommend it. The threat to a citizen’s Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer’s suspicions. And, by requiring a policeman conversing with a motorist constantly to monitor the information available to him to determine when it becomes sufficient to establish probable cause, the rule proposed by respondent would be extremely difficult to administer. Accordingly, we confine our attention below to respondent’s stronger argument: that all traffic stops are subject to the dictates of Miranda.

[Footnote 23]

It might be argued that, insofar as the Court of Appeals expressly held inadmissible only the statements made by respondent after his formal arrest, and respondent has not filed a cross-petition, respondent is disentitled at this juncture to assert thatMiranda warnings must be given to a detained motorist who has not been arrested.See, e.g.,

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