Legal Question in Criminal Law in California

Re: Booking without being mirandized

Yes, but it doesn't happen automatically. The private lawyer you hire will know how to get it done.

Re: Booking without being mirandized

Failure to Mirandize is not a silver bullet defense. It mainly means that any statements you made while in custody cannot be used against you.

You'll need a private lawyer for best results.

Best of Luck.

Re: Booking without being mirandized

No. Miranda warnings are only required IF the government wants to introduce the accused's incriminating statement (i.e., confession or admission) at trial. The failure to give Miranda warnings seldom results in an outright dismissal, but DA won't be able to use unmirandized statements against the accused.

Here's how it works. Police have to read the warnings and then obtain a voluntary waiver of those rights (can't beat it out of the arrestee) before they try to get a confession or some other damaging statement. If they fail to advise of rights or to get a waiver, then the prosecutor will not be able to use the statements in his/her case-in-chief.

If there were no incriminating statements or the prosecutor has other evidence of guilt, the failure to give Miranda warnings will not result in a dismissal. But keeping incriminating statements out can often very helpful in securing a better resolution to the case.

Re: Booking without being mirandized

Sure, anything is possible. However, failure to give Miranda warnings is only an issue if they try to use your confession and incriminating statements at trial. Then a suppression motion would be appropriate. Hire an attorney that knows what he is doing.

Re: Booking without being mirandized

Wow -- four answers so far (from four attorneys who know what they're doing) and none gets it quite right.

Technically, the police are never required to Mirandize anyone. However, when they question someone who is in custody without having Mirandized him, his answers (and any information obtained as a result of those answers that would not inevitably have been obtained anyway) will be inadmissible against him in court.

If the police didn't question you, then the lack of a Miranda warning won't matter. Even if they did (and even if you were in custody at the time), there is a very good chance that the D.A. will be able to prove you violated your probation without using your responses.

Some of the prior answers suggest that you could exclude even a spontaneous, voluntary statement made while in custody, but that is not correct. Only statements made in response to police questioning can be excluded.

Even if you were in custody for Miranda purposes (which is a bit different from what the term usually means), if you weren't questioned there was no need to Mirandize you. The failure to do so thus would not justify a dismissal.

Re: Booking without being mirandized

In response to Mr. Hoffman's reply, the spontaneity or voluntariness of an incriminating statement is not something that any decent criminal defense lawyer would concede. Rather, it is something that would be litigated in a motion to suppress based on the cop's failure to mirandize. Once the defense challenges the statement, the prosecution has the burden of proving the statement was a spontaneous statement (if that's their theory) - i.e., that is was not made during a custodial interrogation.

The law on Miranda violations has many other nuances (i.e. impeachment use, invocation, waiver, etc) none of which were included in the original response because they did not directly relate to the question asked.

Re: Booking without being mirandized

A word of clarification:

Most of my prior answer was copied and pasted from another answer I posted a few weeks ago. The language about probation violations was from that response. I should have removed that portion before I re-used the text. I apologize for any confusion I may have caused.

Re: Booking without being mirandized

Miranda violation does not lead to dismissal of charges. Remedy for violations is limited to exclusion as evidence of self-incriminating statements. If you did not make any statements then the fact that no Miranda warnings were given is completely irrelevant.

Hope this helps.

Jacek W. Lentz, Esq.

310.273.1361

www.lentzlawfirm.com