Miranda Warnings and OWI Stops in Michigan

Police must give Miranda warnings before questioning a person who is in custody, and the U.S. Supreme Court has held that this applies regardless of how minor the offense, including misdemeanor traffic offenses like a first OWI.^[1] But ordinary roadside questioning during a routine traffic stop is not custodial interrogation, so the warnings are not required at that point.^[1] The question that matters in an OWI case is when, if ever, the driver became "in custody" before being questioned.

What the warnings are

Under Miranda v Arizona, before custodial questioning a suspect must be warned of four things:^[2]

1. that he or she has the right to remain silent;^[2]
2. that anything said can be used against him or her in a court of law;^[2]
3. that he or she has the right to the presence of an attorney; and^[2]
4. that if he or she cannot afford an attorney, one will be appointed before any questioning if desired.^[2]

Unless a person in custody has been given these warnings and still waives the rights, no evidence obtained as a result of the interrogation can be used against him or her, and a waiver must be voluntary, knowing and intelligent.^[6]

These are different from the chemical-test advisements an officer reads after an OWI arrest, which cover the independent test, the use of results, and the license consequences of refusing.^[7] The two sets of warnings serve different purposes and come from different laws.

Miranda applies to OWI: Berkemer v McCarty

The leading case is a drunk-driving case. In Berkemer v McCarty (1984), an Ohio trooper saw a car weaving on an interstate and stopped it; the driver was questioned at the roadside and later at the station house.^[1] The Supreme Court held that a person subjected to custodial interrogation is entitled to Miranda's safeguards "regardless of the nature or severity of the offense."^[1] The driver's statements at the station house were inadmissible because he was in custody at least from the moment of his formal arrest and had not been warned.^[1]

At the same time, the Court held that roadside questioning at a routine traffic stop is not custodial interrogation, reasoning in part that such a stop is "presumptively temporary and brief."^[1] If a stopped motorist is later subjected to treatment that renders him "in custody" for practical purposes, he is entitled to the full Miranda protections.^[1]

When does a traffic stop become custody?

Custodial interrogation is questioning by police after a person has been taken into custody or otherwise deprived of freedom of action in any significant way.^[8] Michigan courts ask two questions: whether a reasonable person in that situation would have felt not at liberty to end the questioning and leave, and whether the setting presents the same inherently coercive pressures as station-house questioning.^[8]

Factors include where the questioning took place, how long it lasted, what was said, whether there were physical restraints, and whether the person was released at the end. No one factor controls.^[9] The test is objective: it turns on the circumstances, not on what the officer or the driver privately thought.^[10]

Situation	What the sources say
Routine questions at the driver's window	Ordinarily not custody.[3][1]
Waiting in a cruiser during a vehicle search, not handcuffed, told not under arrest	Not custody on those facts (People v Jones).[11]
After formal arrest and being placed in the police car	Custody (Berkemer).[1]

What counts as "interrogation"

Interrogation means express questioning or its functional equivalent: words or actions police should know are reasonably likely to produce an incriminating response.^[12] Statements a person in custody makes voluntarily, without being questioned, are outside Miranda.^[12]

Testimonial statements versus physical evidence

The Miranda rule bars only testimonial evidence, not physical evidence, and physical evidence found as a result of an unwarned but voluntary statement is not covered by the exclusionary rule.^[4] This matters in OWI cases because much of the evidence is physical.

• In Pennsylvania v Muniz, another drunk-driving case, the Supreme Court held that slurred speech and other signs of poor muscular coordination revealed by a suspect's answers are nontestimonial.^[5]
• The same case held that the suspect's answer to a question asking the date of his sixth birthday was a testimonial response to custodial interrogation.^[5]
• Under South Dakota v Neville, refusing a blood-alcohol test after a lawful request is not protected by the privilege against self-incrimination.^[13]

Michigan adds its own limit on refusal evidence: a refusal is admissible in an OWI prosecution only to show that a test was offered, not as evidence of guilt, and the jury must be told so.^[14] The current instruction is M Crim JI 15.8.^[15] See refusal evidence at trial.

What happens if Miranda was violated

The remedy concerns evidence. A defendant may move to suppress a statement at a hearing usually called a Walker hearing, held outside the jury's presence, and the prosecution bears the burden of showing the statement is admissible.^[16] If statements are suppressed, the case still turns on the remaining evidence, such as observations, video and test results, which are governed by other rules.^[4][17] A separate rule applies when the arrest itself was unlawful: the Evidence Benchbook, quoting People v Lewis (1987), states that statements made while unlawfully detained must be suppressed.^[18]

A defendant's admissions can matter to whether the prosecution can prove who was driving. Michigan's corpus delicti rule requires independent evidence of the crime before a confession may be admitted, though the rule is confined to confessions.^[19] See disputes over who was driving and motions to suppress.

What is not settled in this guide

No primary source was verified on whether a Michigan driver may call a lawyer before deciding whether to take the breath or blood test, so this guide states no rule on it. The Miranda right to the presence of an attorney applies to custodial interrogation.^[2][8] The right to appointed counsel in the criminal case itself is covered in getting a court-appointed lawyer. General guidance on police questioning is also discussed in the Domestic Violence guide's page on talking to police.