Miranda Warnings


The Miranda Warning is a police warning given to criminal suspects who are in the custody of law enforcement before they can ask questions regarding what took place during a crime. The basic definition of custodial is not free to leave. So basically, any freedom of movement that is restrained to an extent associated with a formal arrest is being in custody. Now you have to be Mirandized and being Mirandized covers (4) basic tenets:  

(1) You have the right to remain silent. Anything you say can and will be used against you in a court of law.

(2) You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.

(3) Do you understand the rights I have just read to you?

(4) With these rights in mind, do you wish to speak to me?”


Law enforcement can only ask for specific information such as name, date of birth and address without having to read the suspects their Miranda warnings. Confessions and other information that you provide them will not make up admissible evidence unless you have been made aware of and waived your Miranda rights.

The Miranda warnings were set forth in the case of Miranda v. Arizona to protect a criminal suspect's Fifth Amendment right to help avoid self-incrimination during police interrogation. These rights apply to both serious crimes and misdemeanor cases. However, routine questioning at a traffic stop is not custodial and so at a traffic stop, Miranda is not required.

When The Police Must Read Your Rights

It is important to note that police are only required to Mirandize a suspect if they intend to interrogate that person under custody. Arrests can occur without the Miranda Warning being given. If the police later decide to interrogate the suspect, the warning must be given at that time. Their vigilance to this rule means less chance of a case being overturned in court due to poor procedure on their part.

If public safety is an issue, questions may be asked without the defendant being Mirandized, and any evidence obtained may be used against the suspect under these circumstances. The Miranda Warning is all about questioning and being protected from self-incrimination under the Fifth Amendment, not being arrested.

The person arrested must still answer questions asked about their name, age, address, etc. They can be searched in order to protect the police officer. Also, a confession given before a suspect has been read the Miranda Warning may find that confession entered as evidence in court.

If you have been Mirandized and you waive your rights, meaning you wish to speak to police freely without an attorney present, you can change your mind at any time and ‘plead the fifth,’ meaning you no longer wish to answer questions, or that you have changed your mind and wish to have an attorney present after all.

In Illinois, juveniles have the right to remain silent without his or her parent or guardian present.

Miranda very rarely applies in the context of a drunk driving case, and for this reason it does not need to be read in the context of a drunk driving arrest. The fact that the Miranda rights were not read does not otherwise invalidate the arrest. The Miranda rights are essentially an evidentiary bar; meaning, they bar post-arrest statements made by the defense in response to questioning. If the police don’t need statements to be made in order to prove their case, then there’s no reason for them to question you. And in most drunk driving cases, based on the behavior combined with the breath or blood test, no further statements are necessary. For more complicated cases, perhaps involving serious injury or death, the police may choose to question you. And if they do so and wish to use your responses against you, then they must first read you your Miranda rights.

Invoking Your Miranda Rights

You must indicate in any manner, at any time prior to or during questioning, that you wish to remain silent, and then the interrogation must cease. If you state that you want an attorney, the interrogation must cease until an attorney is present. At that time, you must be given an opportunity to confer with your attorney and to have them present during any subsequent questioning.

What the police also won't tell you or mention is that if you are not under arrest, you have the RIGHT TO WALK OUT OF THE INTERVIEW ROOM. You can end the conversation before it even begins. You should always invoke this Right. Don't be tricked into telling them something you may or may not know. You will never talk yourself out of something, but you will talk yourself into something.

Remember, REMAINING SILENT is not the same as invoking your right to silence. And so, if you have been given your Miranda warnings and you understand your Miranda warnings and you just stay silent, that itself is not invoking your right to remain silent.

To learn more about your Miranda Rights or if you believe you are being investigated for a crime, contact my office to schedule your initial consultation (847) 977-6298.