San Jose Criminal Law Office

Question: When I was arrested, the officer did not read me my rights. Can I get the case dismissed?

Answer: When someone is in custody, he/she has a right to remain silent. The most difficult question deals is whether you are "in custody". This is not as obvious as it seems and there have been a number of court decisions where a court must decide this issue. These issues often arise when someone has agreed to an interview at the police station but is told he is not under arrest. Most simply, if the officer is asking you questions in your home or your car, but you are free to leave if you choose, then the Miranda Rights do not apply. On the other hand, if you are in jail, the police car, or handcuffed, the officer cannot ask questions without reading your Miranda rights. Failure to read these rights results in the answers being inadmissible in a trial against you. Even then, the courts have carved out exceptions: For example, if a defendant testifies differently under oath than he said to the police, the officer may be able to testify to the "non- Miranda" confession in certain circumstances. "Miranda rights" are often the subject of appellate court decisions, and therefore can change depending on the present state of the case law. If an officer is investigating you, you are not required to be interviewed and should immediately consult an attorney. You should also remember that statements that are volunteered to an officer without the police actually asking you any questions are "fair game" for court.

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