We get this question a lot:
Police never read me Miranda rights or they read them to me after I was already in the police car or already at the station arrested for OVI. If they didn’t read me my rights, can I get my OVI case dismissed or reduced?
The answer, like many questions in the law, is: It depends.
It depends on the facts of your case and what happened leading up to your arrest.
To make matters worse, the state of the law in Ohio on this issue is somewhat in flux. Specifically, Ohio courts are split on whether or not the police can make you sit in the front of the cruiser and ask questions about how much you had to drink without first reading Miranda warnings.
To get advice about your specific case and to find out whether the officer’s failure to read your Miranda rights could be a viable defense in your case, you really should talk to a DUI / OVI attorney about your case. (Our attorneys offer free consultations).
What are “Miranda” Rights?
Everyone has seen TV characters being read Miranda rights and most people can even recite the words by heart. But when are police required to read the rights? And what does it mean if they don’t?
The famous U.S. Supreme Court case Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) says that before police begin a “custodial interrogation,” someone accused of a crime must be told of his or her right against self-incrimination and right to counsel.
What happens if police do not read a suspect her rights before a custodial interrogation?
If police do not read a suspect his or her rights before a custodial interrogation, anything that the suspect says or admits thereafter is not admissible in court.
What is a “Custodial Interrogation”?
Miranda defines “custodial interrogations” as:
“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.”
A traffic stop alone does not render the person “in custody” within the meaning of Miranda. But, if during a traffic stop a person is “subjected to treatment that renders him in custody for practical purposes,” then he must be apprised of his rights under Miranda.
The question courts ask in deciding whether or not police have conducted a “custodial interrogation” for Miranda purposes is this:
Would a reasonable person would feel free to leave the interview under the totality of the circumstances presented at that time?
If a reasonable person wouldn’t feel like they could walk away, then they are effectively in custody and should be read their rights before questioning.
Are police officers required to read Miranda rights before asking questions of a suspect while sitting in the passenger seat of the police car?
This is a fairly common scenario in Ohio (especially in the winter):
Police make a traffic stop. The officer thinks he smells alcohol. He asks the driver to step out of the car and sit in the front seat of the cruiser while he asks the driver questions about how much he had to drink.
Ohio courts are split on the answer (for now).
Courts in Ohio’s appellate districts in and around Ashtabula, Cincinnati, Licking County, and Youngstown say no. Police can question suspects in passenger seat of the police cruiser without first reading the suspect Miranda warnings.
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11th District (Warren / Ashtabula) – Miranda warnings were unnecessary where a state highway patrol officer questioned a defendant about his alcohol consumption in the passenger seat of his patrol vehicle. State v. Serafin, 11th Dist. Portage No. 2011-P-0036, 2012-Ohio-1456.
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1st District (Cincinnati) – Miranda warnings were not required where a police officer removed a defendant from his vehicle and placed him in the front passenger seat of his patrol vehicle for questioning regarding his alcohol consumption. State v. Leonard, 1st Dist. Hamilton No. C-060595, 2007-Ohio-3312.
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Fifth District (Licking County) – State v. Mullins, 5th Dist. Licking No. 2006-CA-00019, 2006-Ohio-4674 (finding no custodial interrogation where defendant was questioned about his alcohol consumption in the passenger seat of officer’s patrol vehicle);
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Seventh District (Youngstown) – State v. Coleman, 7th Dist. Mahoning No. 06 MA 41, 2007-Ohio-1573 (no violation of Miranda where defendant was questioned about his alcohol consumption in the officer’s patrol vehicle because other custodial factors were not present).
Thankfully, Ohio’s 8th District (Cleveland) recently disagreed with all these other courts and found the opposite:
Police must read Miranda warnings before asking questions of a suspect in the passenger seat of a police car during a traffic stop.
According to the 8th District court (and we agree):
To believe that a suspect is actually free to leave while sitting in the police car during a suspected OVI stop is “unrealistic and irrational.”
Driver Stopped for Marked Lanes; Police Ask Him Questions About How Much He Had to Drink in Front Seat of Police Car
The recent case referenced above is Cleveland v. Oles, 2016-Ohio-23. The facts of that case happened like this.
Around 10:00pm, an officer said he saw the defendant’s car cross over marked lanes without signaling. The officer followed him for a while then pulled him over.
While talking to him, the officer said he smelled an odor of alcohol coming from within the defendant’s vehicle and observed the driver’s actions to be “very slow and deliberate” when asked to produce his driver’s license, registration and insurance.
Based on his observations, the officer asked the driver to step out of the car and come sit in the front seat of his patrol vehicle. The officer admitted that the driver was not free to leave at this point. The officer said he had the driver sit in the patrol car so he could see if the alcohol smell was coming from the driver or from the car. The officer determined it was coming from the driver’s breath.
The officer asked how much alcohol the driver had drank that evening and the driver admitted he had four mixed drinks while at a wedding. Next, he asked him to step out and to take multiple field sobriety tests.
The driver failed the tests and was arrested for OVI.
At no point during the encounter did the officer advise the driver of his Miranda rights.
Driver’s Statements About How Much He Had to Drink and Subsequent Field Sobriety Tests Inadmissible Because Officer Failed to Read Miranda Rights
The central question on appeal was whether the defendant’s Miranda rights were violated when the officer placed the driver in his patrol car and questioned his alcohol consumption without providing him Miranda warnings.
Ohio’s 8th District found that a reasonable person, removed from his or her own vehicle and questioned about their alcohol consumption in the passenger seat of a police cruiser would not feel free to leave.
The officer even conceded that had the defendant attempted to exit the vehicle, he would have arrested him for OVI.
The officer also testified that he he decided to perform a field sobriety test only after the driver admitted to drinking when asked inside the patrol vehicle. For that reason, the field sobriety tests were also suppressed.
The court notes, though, that the officer might have had reasonable suspicion to conduct a field sobriety test after his initial interaction with the driver at the car or if had he simply asked him to step out of the car and confirmed the source of the alcohol odor was the driver’s breath.
Because of courts’ conflicting decisions on this issue, we might see this Miranda issue soon have a final definitive decision in the Ohio Supreme Court.
If you have any questions about whether your Miranda rights were violated during an OVI / DUI or other traffic stop, our Columbus OVI attorneys can be reached at 614-361-2804.
