WHAT IS AN ARREST?
Arrests often occur long before a law enforcement officer tells you that you are under arrest. The courts have concluded that an arrest occurs when a reasonable person would believe that he or she is not free to leave due to the actions of law enforcement officers. Even so, a different rule seems to apply for DUI cases. In those cases, the Georgia appellate courts have been willing to indulge officers and allow arrest to be triggered by the officer's declaration of arrest. This allows the officer to continue the DUI investigation without reading Miranda warnings.
WHAT HAPPENS WHEN THERE IS AN ARREST?
Once an arrest has occurred, and before asking you any questions, law enforcement officers must provide you a Miranda warning. Most officers will tell you that:
"You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney. If you can not afford an attorney, one will be provided for you."
Important note: if the officers do not question you after arrest, they are not required to read Miranda.
IF YOU DO NOT GET A MIRANDA WARNING?
If the Miranda warnings are not given, anything you say to the police after you are arrested may be "suppressed," that is restricted from use at trial. There are many factors that influence this decision. If you are arrested, and are not being questioned, but you blurt out an incriminating statement, this can be used against you even if you are never given a Miranda warning. The best policy is to say nothing other than identifying information such as name, address, date of birth, etc.
IF YOU ARE EVER ARRESTED, WHAT SHOULD YOU DO?
If you are ever arrested, it is our recommendation that you politely advise the officers that you wish to speak to an attorney and do not want to be questioned. If you are questioned thereafter, simply repeat your desire to speak with an attorney and to not be questioned.
The police may attempt to manipulate you into incriminating yourself. They will suggest that the right thing to do is to tell what you know. They may suggest that you will feel better after telling them what happened. In the vast majority of cases, there is nothing which you can say, whether you are guilty or innocent, which will improve your position. Even an innocent person can say something which will reinforce the police's belief that the person is guilty. "Say nothing" is the best policy. It can all be sorted out after their is an attorney representing you.
WHAT IF THE POLICE WANT TO MAKE A DEAL?
If you're arrested, the police may start to make you promises or offer you a deal. They may suggest that you are not the real target. They may tell you that you will be in more trouble if you don't tell what you know. Sometimes, they may be honest in their statements, but they know that they don't have the authority to do anything binding. Only the prosecutor can make a deal, and a trained defense attorney should be dealing with the prosecutor.
It is wise to direct these officers to talk with your attorney and say nothing more. Your attorney will be better at negotiating with the police than you are, and what your attorney says cannot be used against you. Your attorney can turn meaningless "promises by the police" into binding legal agreements with the prosecutor.