The one thing every DC DUI attorney hopes a client did before calling is simple: stay silent. Nabeel Kibria, a partner at Monument Legal, says that when a client has not made statements to police, the government has less evidence to work with and the defense has more room to work. In the video above, Nabeel Kibria calls silence “paramount.” This post explains where that right comes from, when Miranda warnings actually apply, and how to use the right to remain silent in Washington, DC without creating new problems.
Quick answer: Stay silent and ask for a lawyer. The Fifth Amendment protects you from being compelled to be a witness against yourself. Under Berkemer v. McCarty (1984), Miranda warnings are generally not required during routine roadside questioning, and under Berghuis v. Thompkins (2010), you must invoke silence clearly. In Washington, DC, say: “I am going to remain silent, and I want a lawyer.”
Statements are evidence. Anything you say to police can become part of the government’s case, and a DC criminal defense attorney cannot take those words back once they are in a report or on body-worn camera video. People talk to police for understandable reasons. They want to explain, they want to seem cooperative or they think the truth will clear things up. In practice, explanations often confirm facts the government would otherwise have to prove, such as where you were, what you drank or what you knew.
The right comes from the Fifth Amendment to the U.S. Constitution, which says no person “shall be compelled in any criminal case to be a witness against himself.” Using that right is not an admission of anything.
Police must give Miranda warnings before custodial interrogation, meaning questioning after a person is in custody. They are generally not required before ordinary roadside questions during a traffic stop. The warnings come from Miranda v. Arizona, 384 U.S. 436 (1966), where the U.S. Supreme Court held that a person in custody must be told of the right to remain silent and the right to a lawyer before questioning.
In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court held that routine traffic-stop questioning is not custodial, so Miranda applies once the person is in custody. That timing matters. Many of the most damaging statements in DUI and criminal cases are made before anyone reads a warning. Your right to stay silent exists whether or not an officer has read you your rights.
Routine questions during a traffic stop:
Voluntary conversation before any arrest:
After arrest, before questioning:
Custodial questioning after you invoke:
“Take the Miranda warnings that they give you. There’s a reason they give you those Miranda warnings, and the first one is you have the right to remain silent. Take that right, stay silent, do not say anything.”
Nabeel Kibria, Partner, Monument Legal
Say it out loud and say it clearly. Simply staying quiet may not be enough to protect you. In Berghuis v. Thompkins (2010), the U.S. Supreme Court held that a suspect must invoke the right to remain silent unambiguously.
In Salinas v. Texas (2013), a plurality of the Court found that a man who simply went quiet during voluntary questioning had not invoked the privilege. A clear, respectful sentence works best: “I am going to remain silent, and I want a lawyer.” After that, stop talking about the incident, even if officers keep asking questions or the conversation turns casual.
No. The right to remain silent is a right not to answer questions. It is not a right to ignore lawful instructions. In DC, for example, failing to obey a lawful order of an officer directing traffic can bring a fine of $100 to $1,000 under 18 DCMR § 2000.2.
In a DUI stop, silence protects you from answering questions such as “How much have you had to drink?” Breath and blood testing, however, are governed by separate DC rules, and a DC DUI lawyer will explain those rules differently from the right to silence.
Refusal can be a strategic choice in some cases, but it carries real consequences that depend on the facts.
If police want to speak with you, or you have already been arrested, a lawyer can step in before you say anything more. Every case depends on its own facts, and your options start with a confidential conversation.
Can my silence be used against me in court?
It can, if you never clearly invoked your rights. In Salinas v. Texas, a plurality of the U.S. Supreme Court allowed prosecutors to use a man’s silence during a voluntary, pre-arrest interview because he never said he was relying on the Fifth Amendment. A clear statement such as “I am going to remain silent” puts officers and courts on notice that you are using a constitutional right. That is why the exact words matter more than many people realize.
If police did not read me my Miranda rights, will my case be dismissed?
Not automatically. A Miranda violation usually affects whether certain statements can be used, not whether the charges go away. Under Miranda v. Arizona, statements made during custodial interrogation without proper warnings generally cannot be used by the prosecution to prove guilt. Other evidence, such as officer observations, video and test results, may still be used. A defense attorney reviews the timeline to see when custody began and which statements, if any, can be challenged.
Can I stop answering questions after I have already started talking?
Yes. Under Miranda v. Arizona, if a person indicates at any point before or during questioning that they want to remain silent, the interrogation must stop. You do not lose the right because you answered a few questions first. Berghuis v. Thompkins still requires the request to be clear, so use direct words rather than hints. What you already said may still be used, which is why it helps to invoke the right as early as possible.
Should I talk to investigators to explain my side and clear things up?
Speak with a lawyer first. Investigators may present an interview as a chance to clear things up, but your words can still become evidence. In federal matters, the risk is higher: under 18 U.S.C. § 1001, knowingly and willfully making a materially false statement to federal agents, including the FBI, can be a crime punishable by up to five years, even when you are not under oath. An attorney can decide whether, when and how any statement should be made.
Nabeel Kibria is a partner at Monument Legal, licensed to practice law in the District of Columbia. This video is for general information only and is not legal advice. Every case is different, and nothing in this video should be treated as guidance for your specific situation. For advice about your case, consult an attorney directly.