Navajo Nation police are required to “Mirandize plus” detainees. How does this apply to DWI?

In general, state constitutions and the federal constitution protect the accused from self-incrimination. In a DWI investigation self-incrimination can take several forms, including answering the following common questions from the investigating police officer: whether one has had anything to drink, where one has been drinking, or where one is driving from and to. Any answer by the criminal suspect, the target of the DWI investigation, is almost certainly going to be self-incriminating.

Make no mistake that when the police smell alcohol on a driver from that point forward any information collected, including the solicitation of confessions, is less investigatory than it is confirmatory; the police are building their case against you and not taking into consideration your own self-assessment of how much you had to drink and how long ago. An admission that you had been drinking is their justification to continue the investigation so that they can arrest you.

Any Native American investigated on the Navajo reservation is subject to the jurisdiction of Navajo police. All such targets of any DWI investigation are protected by the Navajo Bill of Rights, 1 N.N.C. §§ 1 – 9. Thus, on the Navajo Nation those that are detained by the police have certain rights, defined in popular culture and in the law as “Miranda rights.” The police are required to read a Defendant his “rights.” These rights include the right to not answer any questions, including incriminatory questions, e.g., “How much have you had to drink?” A good response to such a question would be countering it with your own question, such as “Am I free to leave?” If the officer states yes then leave. If an officer states no, then it’s appropriate to ask him or her “Am I being detained?” If the officer states yes then the good news is your ‘Miranda plus’ rights kick in. You can simply state you are invoking your right against self-incrimination and hereby refuse to answer the officer’s question.

The Navajo Nation Supreme Court provides criminal defendants greater Miranda protections than the U.S. Supreme Court, and the requirements are stated as conferring the following: “We hereby interpret the right against self-incrimination to require, at a minimum, clear notice by the police in a custodial situation that the person in custody (1) has the right to remain silent and may request the presence of legal counsel during questioning, (2) that any statements can be used against him or her, (3) the right to an attorney, and (4) the right to have an attorney appointed if he or she cannot afford an attorney.” Navajo Nation v. Rodriguez, 8 Nav. R. 604, 614 (Nav. Sup. Ct. 2004).

“We must never forget that the accused is still Nohookaa Diné’é, and that he or she is entitled to truthful explanation and respectful relations regardless of the nature of the crime that is alleged. Likewise, a police badge cannot eliminate an officer’s duty to act toward others in compliance with the principles of hazhó ‘ógo.

“We therefore hold that the police, and other law enforcement entities and agencies, must provide a form for the person in custody to show their voluntary waiver. They must also explain the rights on the form sufficiently for the person in custody to understand them. Merely providing a written English language form is not enough. The sufficiency of the explanation in a Navajo setting means, at a minimum that the rights be explained in Navajo if the police officer or other interviewer has reason to know the person speaks or understands Navajo. If the person does not speak or understand Navajo, the rights should be explained in English so that the person has a minimum understanding of the impact of any waiver. Only then will a signature on a waiver form allow admission of any subsequent statement into evidence. Navajo Nation v. Rodriguez, 8 Nav. R. 604, 616 (Nav. Sup. Ct. 2004)

Of course the safest position is to never drink and drive. But if you find yourself being interrogated by the police, or the subject of a DWI road side investigation, then know your rights and never waive any of them without consultation by a licensed member of the Navajo bar. And be sure to tell your attorney if you never signed a written waiver, yet made incriminating statements. “[A] police badge cannot eliminate an officer’s duty to act toward others in compliance with the principles of hazhó ‘ógo.” Id at 616.