When the warning is required
Two conditions have to be met together: the person is in custody, and law enforcement is interrogating them. Roadside questions during a traffic stop, booking questions about name and address, and volunteered statements generally fall outside it. A squad-car conversation about what happened does not.
- Custody — a reasonable person would not feel free to leave.
- Interrogation — questioning or its functional equivalent, designed to elicit an incriminating response.
- No warning needed when neither condition is present.
What the remedy actually is
A Miranda violation does not dismiss a case. The remedy is suppression: the statement obtained in violation may be excluded from the prosecution's case in chief. Physical evidence, witness testimony, and the arrest itself survive. If someone tells you the case goes away because nobody read the card, they are wrong.
Invoking it has to be unambiguous
In Berghuis v. Thompkins the Supreme Court held that simply staying silent for a long stretch is not an invocation of the right to remain silent. Say it plainly: "I am invoking my right to remain silent and I want a lawyer." Then stop talking — including about the weather, including on the jail phone, which is recorded.
The rights that matter in the first 24 hours
- Phone calls: California Penal Code 851.5 gives an arrested person the right to make at least three completed calls, immediately upon booking and no later than three hours after arrest.
- Arraignment timing: PC 825 generally requires arraignment within 48 hours of arrest, excluding Sundays and holidays.
- Bail: a scheduled amount is usually available before arraignment, which is where we come in.