Home > Blog > When Do Police Have to Read You Your Rights During a DUI Stop? Insights from Berkemer v. McCarty

When Do Police Have to Read You Your Rights During a DUI Stop? Insights from Berkemer v. McCarty

June 1, 2025

As a Los Angeles DUI Attorney, one of the most common questions I get is: Do police have to read me my Miranda rights during a DUI stop? The answer depends on whether you are considered “in custody” at the time the police question you. Miranda prohibits “custodial interrogation”, but whether the person is in custody at the time of questioning depends on the facts of your case. The U.S. Supreme Court case Berkemer v. McCarty (468 U.S. 420) provides crucial guidance on this issue—and it’s a case every driver accused of a DUI in Los Angeles should understand.

Los Angeles DUI and Miranda Warnings

In Berkemer, an officer stopped a driver for erratic driving, conducted field sobriety tests, and questioned him about drug and alcohol use—all before placing him under formal arrest. The key question was: Should the driver have been given his Miranda warnings before those roadside questions?

The Supreme Court said no. Here’s why:

“We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him.”

This means that during a routine DUI stop, police can ask questions like “Have you been drinking?” or “Can you perform a field sobriety test?” without giving you Miranda warnings—so long as you are not formally arrested or restrained in a manner comparable to arrest.

That means that during a typical DUI investigation in Los Angeles, 32 questions that police ask based on CHP form 202 may not be covered by Miranda because they take place prior to arrest. In the Berkemer case, the officers only asked 5 questions. CHP 202 questions are 5 times more, and thus, it can be argued, more like custodial interrogation. Here is the list of those questions, and the answers to these questions will be used in the trial to help Los Angeles DUI prosecutors get a DUI conviction after a Los Angeles DUI arrest. Here is the list of those questions (top of page 2 CHP 202).

Is there anything mechanically wrong with your vehicle? Describe
Are you sick or injured? Describe
Are you diabetic or epileptic?
Do you take insulin (pills/injections)?
Do you have any physical impairment? Describe (Feet, Legs, Ankles, or Hips)
When did you last sleep?
How long?
When did you last eat?
Describe?
Were you driving the vehicle?
If no, who?
Where did you start driving?
Where were you going?
Where were you stopped?
What have you been drinking?
How much?
Time started?
Time stopped?
Location where you were drinking?
Do you feel the effects of the drinks? Describe
Did you bump your head?
Have you been drinking since the accident?
If yes, what?
How much?
Are you under the care of a doctor or a dentist?
If yes, name/address
Have you taken any medicine or drugs?
If yes, what?
How much?
Time of last dosage?
Recent surgery performed?
Do you feel the effects of the medicine/drugs? Describe

Terry Stops vs. Arrests: What’s the Difference?

The Court compared a typical DUI traffic stop to a Terry stop (from Terry v. Ohio, 392 U.S. 1), where an officer may briefly detain someone based on reasonable suspicion. In both Terry stops and traffic stops, the Court explained:

“Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.”

This distinction is critical. According to the Court:

“A single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists…”

Under these non-threatening, brief conditions, the interaction is not considered “custodial,” so Miranda warnings are not yet required.

As a Los Angeles DUI Attorney, I often argue in court that the moment a suspect is no longer free to leave—such as when multiple officers are present, or when guns are drawn, the suspect is told he cannot leave, or he’s handcuffed—Miranda warnings become mandatory. Failure to give them at that point should result in suppression of any post-arrest statements.

When Miranda Does Apply in a Los Angeles DUI Case

Once a Los Angeles DUI suspect is arrested—formally or functionally—Miranda kicks in. The Court in Berkemer emphasized that the rules of Miranda apply regardless of whether the offense is a misdemeanor or felony:

“A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.”

If you’re placed in a patrol car, transported to jail, or interrogated after arrest without being Mirandized, your statements should be inadmissible. This is where a knowledgeable Los Angeles DUI Attorney can exclude the statements and fight to protect your rights.

Why This Matters for DUI Defendants in Los Angeles

In Los Angeles, DUI arrests happen daily, often beginning with a simple traffic stop. DUI enforcement officers frequently ask incriminating questions before a formal arrest. If you answer those questions, your responses may still be used against you unless a Los Angeles DUI Attorney challenges their admissibility based on the totality of the circumstances.

DUI Attorney Los Angeles carefully examines every step of the police investigation, especially when Miranda warnings were (or weren’t) given. If your constitutional rights were violated, Los Angeles DUI Attorney fight to have improperly obtained statements excluded.

Need help with a Los Angeles or Orange County DUI case? Contact an experienced Criminal Defense Attorney Los Angeles and Los Angeles DUI Attorney today to protect your rights and your future.