Miranda And Ohio DUI/OVI Cases: To Remain Silent, You Must Talk

One of the most frequently asked questions for criminal defense attorneys is about the impact of Miranda warnings. A previous article in this blog explained the holding of the Miranda case. After the publication of that article, the United States Supreme Court decided a Miranda-related case which affects investigations in Ohio DUI/OVI cases.

Interrogation

The case of Salinas v. Texas came in a bit under the radar. This Supreme Court decision regarding the protection against self-incrimination did not receive much media attention, and I did not hear it discussed much among lawyers at the courthouses. Although it was not widely publicized, Salinas could have an impact in Ohio DUI/OVI cases.

To understand the significance of Salinas, one must first understand Miranda v. Arizona. The holding of the Miranda case seems to be one of the most misunderstood aspects of American criminal justice. As explained in this blog’s 2012 article (“But The Officer Never Read Me My Rights”), the holding of the Miranda case is this: if a suspect is questioned while in custody, the suspect’s statements are not admissible in court unless the officer gives Miranda warnings. Another result of Miranda is this: if a suspect chooses to remain silent, the prosecution cannot comment on the defendant’s silence at trial.

The Salinas case addresses the part about the prosecution commenting on the defendant’s silence. Salinas was charged with murder. When he was questioned by police officers about the murder weapon, Salinas remained silent. At the trial, the prosecutor argued to the jury Salinas must be guilty because an innocent person would have answered the questions about the murder weapon. Salinas was found guilty and appealed his conviction all the way to the United States Supreme Court.

The Supreme Court concluded it was appropriate for the prosecution to comment on the defendant’s silence. The Court found Salinas was not in custody and was not given Miranda warnings. A plurality of the Court reasoned a suspect in those circumstances must invoke his right to remain silent by communicating to the officers he is claiming the right. Merely remaining silent is insufficient to invoke the right to remain silent.

The Salinas decision is important for Ohio DUI/OVI cases because drivers are often questioned when they are not in custody and not given Miranda warnings. After making a traffic stop, an officer may ask a driver questions like, “have you been drinking?”, “how much alcohol did you drink?”, or “do you feel like you’re under the influence?”. If the driver answers, the answer can be used in court. According to the Salinas decision, if the driver remains silent, the driver’s silence may also be used in court. Only if the driver clearly communicates to the officer the driver’s intention to invoke the Fifth Amendment will the driver’s silence be excluded from evidence at trial.

The irony of this situation is the driver must talk if he wants to remain silent. All of America knows the warning: “You have the right to remain silent”. The truth is, you don’t always. If you’re questioned and not in custody, you cannot be compelled to incriminate yourself, but you don’t really have the right to remain silent. In fact, if you choose to remain silent, the prosecutor will use your silence to make you look guilty at trial. Maybe those warnings need to be changed.