When do I start having the Right to Remain Silent?

The Cold, Hard, Facts

Mr. Matheson had driven his car into a ditch. It was raining pretty heavily, so Officers Kuga and Wacenske approached the vehicle, and took him underneath the awning of a nearby building to speak with him about the incident. Mr. Matheson mentioned that due to the heavy rain, he was unable to see anything and accidentally drove his car off the road. It was then that Officer Wacenske who noticed a strong odor of alcohol coming from Mr. Matheson’s breath.

Naturally, officer Wacenske asked if Mr. Matheson had been drinking to which he slurringly responded “I’ve only had two Sex on the Beaches, officer . . . or Sexes on the Beach. However you prefer to call them.” At this point Officer Wacenske decided that she should conduct some field sobriety tests given that Mr. Matheson was slurring his words, had admitted to drinking, and admitted to driving the vehicle in question.

After 30 minutes of conducting field sobriety tests Officer Wacenske instructed Officer Kuga to take Mr. Matheson into the lobby of the nearby building and stand behind him until Officer Brooks arrived. During this waiting period Mr. Matheson was prevented from leaving by Officer Kuga’s imposing presence, as Officer Kuga had Mr. Matheson’s keys, and once Officer Brooks showed up, Officer Wacenske informed her that Mr. Matheson had likely been Driving While Impaired based on the tests she (Wacenske) had performed earlier.

Shortly after Officer Brooks showed up, she asked her own questions, performed a second set of field sobriety tests –which took another 20 minutes, and came to the conclusion that Mr. Matheson was appreciably impaired and likely Driving While Impaired. They placed him in handcuffs and took him to the station for testing.

When did Mr. Matheson’s Miranda Rights kick in, if ever?

First of all: What are the Miranda Rights?:


“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 an attorney. If you cannot afford an attorney one will be provided for you. Do you understand these rights as they have been read to you?”

One’s Miranda Rights take effect once someone is under one of two scenarios:

  1. Arrest
  2. Custodial Interrogation

Arrest is pretty easy: someone’s seizure and taking of said person into custody. Think handcuffs, placed in the backseat of a patrol car.

Custodial interrogation is a bit more nuanced though.

  • It is “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.”  
  • “The appropriate inquiry in determining whether a defendant is in ‘custody’ for purposes of Miranda is, based on the totality of the circumstances, whether there was a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest’”

If these rights are not read, after either of these scenarios then any further questioning of an individual and any of their subsequent answers are typically inadmissible in court.

Were his Miranda Rights Violated?

Technically speaking, Mr. Matheson was not under formal arrest until after the second set of field sobriety tests were conducted but was he a subject of Custodial Interrogation?

Maybe. Detaining someone for 30 minutes, to conduct a series of tests which determined that they were likely Driving While Impaired can be perceived as normal. However, then keeping Mr. Matheson in a confined place, unable to leave, keys and car under the physical control of two officers, with one officer standing behind him to assure he didn’t make a run for it, only for another officer to arrive and ask further incriminating questions and perform the same battery of tests (when one usually suffices) sure seems like a “restraint on freedom of movement to the degree associated with a formal arrest.”

Hereby, we would argue that without Mirandizing Mr. Matheson at the conclusion of the first tests, Officers Wacenske, Kuga, and Brooks violated his Miranda Rights, and anything he told Officer Brooks would be inadmissible in court.

If you’ve ever found yourself in a situation similar to that of Mr. Matheson, and your Miranda rights have been violated, please call us today!

Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

State v. Buchanan, 353 N.C. at 339, 543 S.E.2d at 828

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