How Long Do the Police Have to Wait to Question You if You Ask for an Attorney?

Posted on September 17, 2010 by Ron Chapman

          In the case of Edwards v. Arizona, the United States Supreme Court ruled that when the police question someone who is in custody and that person expresses a desire to deal with the police only through a lawyer, the police have to stop questioning that person unless he or she voluntarily initiates further communication with the police. But how long do the police have to wait before they are allowed to try to question the person again?  An article that I posted on my website, Federal Criminal Lawyer:  Frequently Asked Questions, examines how the Supreme Court answered that question earlier this year in the case of Maryland v. Shatzer.

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DUI and Miranda Warnings

Posted on February 18, 2008 by Ron Chapman

On February 10, 2008, I posted an article entitled "When Are Miranda Warnings Required?"  In that article, I stated that the police are required to give a person Miranda warnings only when that person is in custody and is being interrogated by the police.  After writing that article, I came across a recent Florida case which seems to contradict the United States Supreme Court's decision in Miranda v. Arizona.

In State v. Busciglio, Mr. Busciglio was arrested for DUI and then taken to a police facility where he was asked to blow into a machine in order to determine the amount of alcohol in his breath.  Mr. Busciglio refused to blow and later argued that he had the right to consult with a lawyer before deciding whether to blow.

It would seem that Mr. Busciglio had a good argument because he was clearly in custody and because it would appear he was being interrogated by the police when the officer asked him whether he would agree to blow into the machine.

However, the Florida appellate court that decided his case rejected Mr. Busciglio's argument.  The Court said that whenever a person exercises his privilege to drive in Florida he thereby impliedly consents to give a sample of his breath if requested to do so by a police officer.  That being the case, "[a]sking a defendant to comply with conduct he has no 'right' to refuse does not invoke any degree of coercion associated with impermissible interrogation."  And because Mr. Busciglio was not being interrogated when asked to blow into the machine, the Court ruled, the police officer was not required to give him Miranda warnings at that particular moment.

Although the United States Supreme Court's decision in Miranda v. Arizona appears straightforward at first blush, cases like Mr. Busciglio's demonstrate the confusion that often surrounds the day-to-day application of the Miranda decision.

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When Are Miranda Warnings Required?

Posted on February 10, 2008 by Ron Chapman

Many people who have grown up watching TV mistakenly believe that the police must always give a person Miranda warnings as soon as they begin speaking with him. 

From watching television, many people know that Miranda rights include the following:

1. You have the right to remain silent—you do not have to talk.

2. What you say can be used and shall be used against you in a court of law.

3. You have the right to talk with an attorney before you talk with us, and you have the right to have the attorney present during the time we are talking to you.

4. If you do not have the funds to employ an attorney, one shall be appointed to represent you free of charge.

5. Do you understand these rights as I have explained them to you, yes or no?

6. Do you want to talk to us about your case now, yes or no?

7. Do you want an attorney present during the time we are talking to you, yes or no?

 

However, the police are required to give a person Miranda warnings only:

a.  When a person is in custody; AND

b.  When the police are questioning that person.

Therefore, if the police arrest someone but decide not to question him, they do not have to give him Miranda warnings.

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