You just got off work at the bar and had a tall “shifty” to complete the day. You get in your car and head home. The lake looks magical as a white fog lifts from it and glows in the moonlight.

The reverie is broken by blue and red lights and a very loud siren behind you. You pull over. Flashlight in hand, the officer approaches your car. 

The Miranda Warning

“Where were you tonight?” the officer asks after checking your ID. “How much did you have to drink?” he queries. 

Because you are being questioned by the police you feel compelled to answer. Yet, if you admit you were at a bar and had a big drink after your shift, aren’t you incriminating yourself?

Yes.

Remember, the law does not require the officer to recite the Miranda warning before asking you questions which could get you into trouble. The Miranda Warning is only told to you if and when you are under arrest.

So, what do you do? Here is where the Fifth Amendment comes into play. 

The Fifth Amendment 

If you are asked if you have been drinking do not incriminate yourself. If you say yes you have just given the officer “probable cause” and reason enough to test and arrest you. 

Without specific facts and circumstances, such as you swerving all over the road or your admission of guilt, the officer does not have reason enough to arrest you. 

This blog just gave you an answer

You are reading this blog, posted by a reputable and experienced law firm. You can now honestly answer the officer, “I have been advised not to answer that question.”

Or, you can instead simply ask, “Am I under arrest?”

The officer has to have a reasonable and justified suspicion that you are impaired or drunk (having a BAC of .08 in Minnesota) before arresting you or even telling you to step out of the car and take the field sobriety test.

Remember, it is not illegal to have a drink and drive. It is only illegal to drive impaired or above the legal limit.