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If the officer never gave me a Miranda warning in my Texas DWI arrest, can my case be dismissed?

After a late night at a bar with friends in Houston, you decide to drive home. You've been drinking a little, but you feel fine. Before you know it, you see flashing blue lights in your rearview mirror. After a fairly short interaction with the Texas law enforcement officer, she has you step out of the car and perform field sobriety tests. Then suddenly, you are arrested for DWI. The officer places you in the back of her car and takes you to jail. Later at the jail, it dawns on you that you were never read the Miranda warning you've seen so many times on television. Were your rights violated? Does this constitute grounds for having your case thrown out?

Like with many legal issues, the answer to this question is: "It depends." You may be surprised to learn that Miranda warnings are related not to an arrest but to an interrogation. However, if you were questioned improperly, it is possible anything you said could be excluded from trial. This can lead to dismissal of the charges or to your attorney winning at trial.

This is a nuanced area of law, and it is highly recommended you discuss your case with an attorney. If you have been arrested in Houston and are concerned your rights have been violated, contact DWI attorney Doug Murphy. Doug Murphy has the knowledge needed to address issues related to criminal law and constitutional rights. In fact, he's one of only two attorneys in the State of Texas who are Board Certified in both DWI defense law and criminal defense law.

The Miranda Warning & What it Means in Texas

If you have seen a procedural crime show in your lifetime, you are probably familiar with the common refrain of the Miranda warning:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford one, one will be appointed to you by the court.

But what do these words mean to you on a practical level? The Miranda warnings are designed to be a preventative rule of criminal procedure to ensure an accused is aware of his or her rights.

The Basis of Miranda Rights

Your Miranda rights are rooted in protections provided by the 5th and 6th Amendments to the U.S. Constitution. A 1966 landmark case, Miranda vs. Arizona, set the precedent that law enforcement must inform a person prior to interrogating him or her that he or she has rights.

Any failure to give the Miranda warning before an interrogation can lead to any evidence collected during the interrogation as inadmissible in court. This can include statements or even the location of physical evidence. If you have been charged with a crime, the best way to ensure your rights are protected is to remain silent until you can discuss your case with an attorney.

Miranda and Texas Law

Miranda is a United States Supreme Court decision, and it applies to the entire country. However, Texas has also codified the right to remain silent into state statute. Both Articles 38.21 and 38.22 of the Texas Code of Criminal Procedure relate to the right to remain silent. Article 38.21 reads:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

While Article 38.21 sets out when a statement may be used, Article 38.22 sets out that a written statement made by an accused may not be used against him unless the interrogating officer read the accused his rights and the accused waived them. The rights conferred by Article 38.22 are:

  1. He has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
  2. Any statement he makes may be used as evidence against him in court;
  3. He has the right to have a lawyer present to advise him prior to and during any questioning;
  4. If he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
  5. He has the right to terminate the interview at any time.

When Do the Police Have to Mirandize You?

Whether or not an officer is required to read you the Miranda warnings will often depend on if you are in custody or not. If you are not being detained by an officer and voluntarily offer information, the officer does not have to Mirandize you to use that information against you. This is a common police tactic known as "voluntary assistance." The police state they want to "help out" or "clear your name," but in reality, this is a way the police try to question you without having to read the Miranda warning.

If you are not under arrest or otherwise detained by the police, it is possible the officers are treating a conversation with you as voluntarily assistance. In such cases, the questions the officers pose do not require Miranda warnings. Unwittingly, when you think you are doing something right, you could actually be placing yourself in serious legal jeopardy.

Remember: you do not have to speak to the police. It is in your best interest to consult with a criminal defense attorney before you answer any questions.

Even if you have been arrested, Miranda only applies to questions that are interrogative in nature. They do not need to read you your rights to ask you biographical information like your name or address. What's more, the police don't have to warn you not to say anything incriminating in their presence. The police will be recording you as you ride in the police car to jail; anything they record can be used against you.


Because of the variable factors we've discussed, a series of examples are helpful to illustrate whether or not your rights were violated.

Miranda Rights During a DWI Arrest Example

You have been pulled over while driving home from the bar. The officer suspects you have been drinking and, after an investigation, arrests you. You are placed in the back of the police car without having your Miranda rights read to you. As the officer is putting you in the car, you exclaim, "But I only had three beers!" Once you are alone in the back of the car, recording equipment captures you saying to yourself "I should have never drank and drove."

At trial, your defense attorney will have a hard time having either of your statements excluded. While it is true that you were never Mirandized, both of your statements are likely considered voluntary. This includes the statement to the officer that you "only had 3 beers," and the statement made to yourself that you had regrets about drinking and driving.

Questioning in Police Car After a DWI Arrest Example

A house in your hometown mysteriously catches on fire. Shortly after the blaze breaks out, police discover you walking near the burning home. The officer suspects that you are involved after noticing that you smell like gasoline and have charred marks on your pants. You are arrested, handcuffed, and placed in the back of a police car. The officer fails to read you your Miranda rights, and instead of taking you to jail begins questioning you in the police car about the fire. After an hour of pointed questions, the officer gets you to admit that you started the fire. He also gets you to give up the location of the blowtorch that you used to start the fire.

An experienced criminal defense attorney will likely be able to exclude both the statements you made and the evidence recovered from trial. Even though you weren't in jail, you were clearly in custody after having been arrested, handcuffed, and placed in a squad car. At that point, your Miranda warnings are required before any interrogation. Because of the failure to Mirandize you, the judge is likely to exclude not only the statements you made but also the blowtorch discovered as a result of the illegal questioning.

Hiring the Right Houston DWI Defense Attorney

If you have been charged with a crime in Houston and are concerned about your constitutional rights being violated, contact the Doug Murphy Law Firm, P.C.. Doug Murphy utilizes the skills that earned him Board Certification in both criminal defense law and DWI defense law to aggressively defend you. Board certification isn't a participation trophy given to anyone who applies; only attorneys with experience and extensive knowledge have a chance at achieving Board Certification. That's why Doug Murphy is one of only two attorneys in the State of Texas to be Board Certified in both criminal law and DWI defense. This level of knowledge and experience has led many Houston defense attorneys to hire him to assist in defending their own clients.

Doug's skillset was honed in the courtroom. An experienced litigator who prepares every case as if it were going to trial, Doug Murphy aggressively advocates for his clients. It is his belief that the interests of his clients are best served by aggressively pursuing every case as it would go in front of a jury. For a free consultation, contact the Doug Murphy Law Firm, P.C. today by calling 713-229-8333.

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