Can I get a dismissal because my Miranda Rights were not read? 13 Answers as of January 16, 2012

Not necessarily, but it may be possible to have any statements you made after being arrested suppressed.

Probably not. You may be able to get the statements made to the cops suppressed with a motion.

Miranda rights are frequently misunderstood. The police do not ever have to read you your rights. What Miranda rights mean is simply that the police can not question you (in a scenario where you are either not free to go or reasonably believe that you're not free to go) and use your statements against you. In other words, if after electing to have an attorney present the officer goes on and asks you whether you committed the crime or not (for instance) and you answer the question and say yes, then there is a factual basis for a motion to suppress that answer, so that it can't be used against you in a court of law. Failure to give Miranda warnings does not in any other way impact whether charges can be filed against you. So, in short no you cannot get a dismissal because the police failed to read you your rights, or to honor your request for a lawyer during questioning.

If you have the cop's statement on video tape there is a very good chance that the Judge will exclude your answers to the cop's questions as being the product of deceit and fraud. You could win the whole case then if there is no other admissible evidence against you.

If the cops don't destroy the video you win.

Miranda only kicks in just before a person is arrested. In other words, anything you say prior to arrest is consensual, and Miranda won't help you. Most cops are trained to get everything out of you before they cuff you, so by the time you get cuffed the investigation pretty much ends and they don't need anything further from you. There are exceptions, like if they bring you back to the police station and begin questioning you further, then Miranda would help you there.

If your rights were read to you before you answered questions then your answer will be considered a waiver of your right to remain silent.

Miranda rights are very complicated. It's hard to say whether or not there could be an issue here without knowing a lot more info. The remedy for a violation of your Miranda rights is not necessarily a dismissal.

When you ask to speak with your attorney and have him present during questioning the police are required to stop all interrogation questions and either arrest you or let you go.

Unfortunately, the most you might reasonably expect from a Miranda violation is that any statement you might have made would be excluded from evidence at the trial. Even then, that might be a limited victory since, if you testified at trial opposite to what you told the cops in your un-Mirandized statement it very likely would be admitted against you.