Guest post by Randy England

Accused persons often tell their attorney: “The cop who arrested me didn't read me my rights. Can you get the charges thrown out?”

The short answer is maybe. The rights you are thinking of are called your Miranda rights. The purpose is to warn you that you don't have to talk to the police if you don't want to. The idea is that a person under arrest may not feel free to remain silent when he is questioned by the police. So the U.S. Supreme Court has declared that persons in government custody must be warned of their rights before being interrogated.

How does this work in practice?

Example 1: A police officer pulls you over for speeding and walks up to your car window. He smells alcohol coming from the window. Without reading you your rights, he asks “Do you have any illegal drugs in the car?” You answer “Just a little dope in the glove box.” You are arrested and charged with marijuana possession.

• Result: The charge is good. The officer didn't have to read you your rights because you weren't in custody when he questioned you.

Example 2: A police officer pulls you over for speeding and walks up to your car window. He sees a bag of marijuana in you lap. Without reading you your rights, he arrests you and you are charged with marijuana possession.

• Result: The charge is good. The officer didn't have to read you your rights because he did not ask you any questions.

Example 3: A police officer pulls you over for speeding and walks up to your car window. He smells alcohol coming from the window. He gets you out of the car, but you fall down because you are too drunk to stand up. He arrests you for DWI and puts you in handcuffs. Without reading you your rights, he asks “Do you have any illegal drugs in the car?” You mumble “Just a little dope in the trunk.” The officer searches the trunk, finds the dope and you are also charged with marijuana possession.

• Result: The marijuana charge gets thrown out because you were questioned while in police custody and had not been read your rights. Your attorney can get the marijuana evidence suppressed. Without the evidence the state has no case.

In the real world the police screw this up from time to time. They forget to read people their rights or they wrongly judge that they don't have to. If the police mess up, your lawyer may be able to help you. The better rule, however, is to help yourself:  assert your right to remain silent when questioned about possible involvement in a crime.  That is nearly always the wisest choice.