Frequently Asked Criminal Law Questions: Can my case be dismissed if I wasn't advised of my Miranda Rights? Am I entitled to make a phone call if I am arrested?

September 6, 2012

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There is a pattern of "frequently asked questions" in the field of criminal law. This blog is dedicated to answer a couple of those questions. This blog is not intended to provide a one-size-fits-all dissertation on the covered subjects but only a short synopsis with some other references linked-in for further research if you are interested. It is important to understand that entire law books have been published regarding the Bill of Rights (4th, 5th and 6th Amendments) and other particular legal issues such as "possession".

Remember: When the mistakes by the police add up, you may be entitled to a dismissal or suppression of evidence. Even minor mistakes may weaken the case to the extent that the charges are reduced.

Can my case be dismissed if I wasn't advised of my Miranda Rights?
The answer is usually NO with some exceptions.

This is probably the Number 1 question that we are asked when someone is charged with a crime. In 1966, the Supreme Court held that Miranda Warnings by the police are required to protect a person suspected of a crime pursuant to the Fifth Amendment right to avoid self-incrimination during police interrogation. When the police have other evidence to proceed against a person, the person's own statements may not be necessary. Therefore, should the person's own statements be excluded (based upon Miranda violations), the State may proceed against the person based upon other independent evidence and witnesses. We are often asked this question in the realm of drunk driving cases. Consider the following example:

Example: Assume that a person admits to drinking 4 beers after being stopped for a DUI. The accused may argue that the statements are not admissible because he wasn't given his Miranda warnings or because the statements were involuntary. Even if the attorney is able to have the statements suppressed (inadmissible at trial), the prosecutor may still proceed with other evidence such as the chemical test (BAC result from blood or breath), witnesses (police or civilians) who viewed the conduct of the accused, the accused's ability to perform Field Sobriety Tests (FST), etc.

Please be advised that when statements of the accused are suppressed, the Court may also suppress any other evidence derived from the inadmissible statements pursuant to the Fruit of the Poisonous Tree doctrine. When substantial evidence is suppressed (held inadmissible), the case may be dismissed or quashed.

Again, please remember that entire books and treatises have been written on the subject of Miranda Warnings (BOOK LINK).

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Do I have the right to make a phone call if I am arrested?
The answer is NO.

I do not know of any law in Michigan that allows someone the right to make a phone call upon being arrested. However, some police agencies have adopted regulations which allow an arrested person to make a phone call in the furtherance of Miranda Warnings which provide that a person has a right to remain silent and a right to an attorney

The right to make a phone call is a misnomer since it is actually not a right at all. It is merely a formality which allows an arrested party to call family members or an attorney. Should the police deny a person the right to call an attorney, there may be a legally arguable Constitutional issue. At the very least, we would argue to suppress any statements or information gathered from a suspect who is questioned after being denied a phone call (to his attorney) on the 5th and 6th Amendment grounds (self-incrimination and denial of right to counsel).

Take another look at the image which is posted at the top of this blog.
This scenario raises at least 14 questions which our criminal defense attorneys would ask:

1. Is the person/suspect in custody (not free to leave)?
2. Was the person/suspect validly arrested or detained?
3. Is the person/suspect under the influence of drugs or alcohol?
4. How long has the person/suspect been detained?
5. Was the person/suspect intimidated by the officer (armed and in uniform)?
6. Is the person/suspect suffering any mental condition?
7. Was the person/suspect coerced, threatened or intimidated?
8. Was the person/suspect denied nutrition and rest room facilities?
9. Did the person/suspect ask for an attorney during questioning which was denied?
10. Does the person/suspect take any medications which could impair his judgment?
11. Was the person/accused deprived of sleep or rest?
12. What is the age, intelligence level (IQ) of the person/suspect?
13. WAS THE PERSON ADVISED OF HIS MIRANDA RIGHTS?
14. WAS THE PERSON ALLOWED TO MAKE A PHONE CALL?

Violation of Miranda Rights or the ability to make a phone call can provide a basis for a motion to quash (dismiss) or suppress evidence. For this reason, every detail and fact is important when you talk to your lawyer.

Some excellent video references:

Ten Rules When Dealing With Police (Video)
Don't Talk to the Police (Video)
The Proper Way to Handle a Police Stop (Video)

If you have a question, please visit our website and send the question which we will attempt to answer and may even consider making it the subject of a future blog.

Links to some other frequently asked questions:

Can I be charged with a crime if only one person says I did it and there are no other witnesses or evidence?

Do court appointed lawyers work for the police and prosecutor?


Contact the ABDO LAW FIRM if you are charged with any criminal offense (misdemeanor or felony) or drunk driving.

Call for a free phone or office consultation:

ABDO LAW FIRM
Phone: 586-412-5555