The Fifth Amendment of the U.S. Constitution most commonly applies to criminal law with regard to the right against self-incrimination.  There are a few ways the right against self-incrimination apply in criminal law.

Miranda Warnings.  Most people are most familiar with the term “Miranda Rights.”  Indeed, Miranda Rights are squarely rooted in the Fifth Amendment.  However, what many people may not know is that these rights are only triggered in a very specific scenario, called “custodial interrogation.”  First, the person has to be “in custody.”  The standard for being “in custody” is that such an individual would not reasonable feel free to leave tantamount to being under arrest.  Secondly, the person must be in the custody of the government.  Being detained by one who is not a governmental actor does not trigger one’s Miranda Rights.  Finally, the governmental actor must be “interrogating” the subject.  “Interrogation” specifically means that the government agent is asking questions of the subject that are likely to elicit incriminating responses.  Therefore, when law enforcement subjects an individual to the very technical meaning of “custodial interrogation,” the individual must be made aware of his or her Fifth Amendment right against self-incrimination prior to answering any questions.

The Right to Remain Silent.  The Fifth Amendment provides that an individual has the right to remain silent at any stage of criminal investigation or prosecution without that silence being held against him or her.  As such, whether it is during the investigatory phase, or at trial, a suspect or defendant cannot be compelled to say anything due to their right to remain silent.

Other Fifth Amendment Protections.  There are additional Fifth Amendment protections that apply to criminal law, however, the above are the most common applications.  If you are charged with a criminal offense in the state of Colorado, contact experienced Denver criminal defense attorney Jacob E. Martinez today to discuss your case, as well as to see how your case may involve Fifth Amendment defenses.

Miranda and DUI: Our experienced Denver DUI attorneys are often asked if the police are required to read their Miranda Rights while making an arrest. It is important to remember that Miranda only applies if a person is in custody. It also only applies if officers want to engage in questioning designed to elicit an incriminating response (i.e. “How much did you have to drink tonight?” is a question designed to incriminate a person for drinking and presumably driving. “Did you see the Broncos game last week?” is a question designed not to incriminate, but rather to make a person feel comfortable enough to start talking.)

In a DUI investigation, by the time the police have a person in custody, they typically have all the evidence they need to get a conviction. They have their observations of a person, including how they appear, if any odor of alcohol is emanating from the person, if they are slurring their speech, and how they move/behave. The officer also has observations of the person’s performance on roadside maneuvers, should a person perform them. The officer also has the preliminary breath test, should a person choose to submit to a PBT. The preliminary breath test is performed on a small portable machine and is typically done roadside. (On a separate note, it is never recommended by our office to submit to a preliminary breath test. This is different from the breathalyzer they will ask that you take AFTER you have been arrested) In other words, by the time the officer would be required to read you your Miranda rights, they do not need to. However, officers are capable of making mistakes.  Determining when a person’s rights have been violated is a role we take very seriously. We will fight to protect your rights; contact us today.

When are the Police Required to Read You the Miranda Rights: As stated above, a person must be in the custody of the government. While every case is different, there are a number of factors that courts consider when determining if a person is in custody. These factors are laid out in People v. Matheny, 46 P.3d 453 (Colo. 2002). Generally, they are pretty logical, and using them, a court is instructed to try and determine, essentially, how intimidating the situation was by weighing the factors in favor of a finding of custody against those that weigh against a finding of custody. This, again, is because in order to be in legal custody, a court must determine that a reasonable person felt their freedom of action had been deprived to the degree normally associated with arrest. While a court must find more than strictly intimidation, it gives a sense of what a court is looking for: that a person did not make a statement because they wanted to, but rather because their will was overborne by the coercive pressure placed on them by police.

  • The first is the time, place, and purpose of the encounter. Did the encounter occur at night? Were you in your home? Were officers there to investigate a crime or because you called them? These are the types of questions that this first factor is aimed at exploring.
  • The second factor is the persons present during the interrogation. Essentially, this factor is exploring whether you were alone or with another person and how many officers were present. Naturally, being surrounded by officers increases the pressure and feeling that a person is not free to leave, as a person normally would not feel when their freedom of movement was restrained to the degree normally associated with formal arrest.
  • The third factor is the words spoken by the officer to the defendant. While somewhat obvious, the nature of what an officer is saying to an individual is an important part of the consideration. Was the officer accusing you of having committed an offense or was the conversation more general? Obviously, one is more intimidating than the other.
  • The fourth factor couples with the third and considers the officer’s tone of voice and general demeanor. Again, if an officer is shouting at person, is agitated, and makes accusations, it is a factor that courts would likely say weighed on the side of in custody.
  • The fifth is the length and mood of the encounter. A five-minute conversation with an officer is unlikely to add weight toward custody. A two-hour interrogation is likely to add weight toward custody. The trick is determining at what point tips the scale from not in custody to in custody. An experienced Denver criminal attorney from the Law Office of Jacob E. Martinez will be able to provide you guide you through this process.
  • The sixth factor is whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation. This factor applies to more than being in handcuffs. If an officer prevents a person from leaving or moves them into a different location and keeps them there, this factor could weigh in favor of custody.
  • The seventh factor is the officer’s response to any questions asked by the defendant. While officers are permitted to lie to individuals, certain lies may be enough to tip this factor in favor of the defendant. Further, if an officer provides faulty legal advice, then a court may consider the ramifications of such action by the officer.
  • The eighth factor is whether directions were given to the defendant during the interrogation. This couples with a few of the other factors and focuses on the officer’s conduct. If an officer is ordering someone around, reasonably, a person would feel deprived of some freedom of movement.
  • Finally, the ninth factor is the defendant’s verbal or nonverbal response to such directions. How you behave during an encounter with the police is very telling as to whether an outside, imaginary “reasonable” person would feel similarly that their freedom of movement was restrained to the degree typically associated with a formal arrest. In the age of cell phones and body cameras, the argument often comes down to what it is in the footage. However, an experienced Denver Criminal defense attorney is able to distill the footage into an argument that wins in court. Contact our office for free consultation on your case.