Major FL Court: Right to Lawyer ‘At This Time’ Was Sufficient to Advise Defendant of Miranda Rights

January 14, 2026 Don Pumphrey, Jr. Criminal Defense Social Share

Florida’s 4th District Court of Appeal ruled that a Miranda warning advising a suspect of his right to a lawyer ‘at this time’ was sufficient to inform him of his ability to have counsel present during police interrogation.

In Florida and throughout the United States, Miranda rights are a key legal protection for those who are subject to custodial interrogation.

According to the U.S. Supreme Court’s Miranda v. Arizona, 384 U.S. 436 (1966) ruling, a Miranda warning must notify a suspect of:

• The right to remain silent
• The fact that anything they say can and will be used against them in court
• The right to an attorney, including to have one present during police questioning
• The fact that if they cannot afford an attorney, one will be provided for them

If someone is read their Miranda rights, the wise next move is to EXERCISE those rights. Tell the police you will be remaining silent and request an attorney. Say it out loud, because the U.S. Supreme Court has ruled that just sitting there silently (not verbally invoking your rights) allows law enforcement to continue questioning you. Berghuis v. Thompkins, 560 U.S. 370 (2010)

Police must notify someone of their Miranda rights in Florida before they are subject to custodial interrogation. It is commonly believed that any time someone is placed “in handcuffs” that they must be Mirandized, but this is not true.

So, what do “custody” and “interrogation” mean? According to courts, custody occurs when a reasonable person in the defendant’s position would not feel free to terminate questioning and leave – and their movement is being restricted by police in a manner consistent with a formal arrest. For more on custody, click here.

Interrogation is defined as law enforcement questioning or its “functional equivalent” that is reasonably likely to elicit an incriminating response from a suspect. Moore v. State, 798 So.2d 50 (Fla. 1st DCA 2001). For more on interrogation, click here.

When someone is read their Miranda rights, they have two choices:

• Exercise their rights (e.g. invoke the right to remain silent/ask for an attorney), which is the wise move
• Waive their rights and agree to speak with police without an attorney present (not a smart move, as law enforcement is professional trained to break suspects down and get them to confession)

If someone chooses to waive their Miranda rights, this must have been knowing, intelligent, and voluntary. Otherwise, their post-arrest statements (including confessions) cannot be used against them in a court of law. 

A defendant successfully moving to prevent their post-arrest statements from being introduced into evidence may change the outcome of a criminal proceeding, as it prevents prosecutors from showing these to the jury. If someone confessed, the fact that their confession is not admissible in court may be a game-changer.

A Miranda “waiver” is knowing, intelligent, and voluntary if the defendant understood both the nature of their Miranda rights (e.g. right to remain silent/to an attorney), as well as the potential consequences of giving them up (e.g. that their statements can and will used against them in a court of law). For more on this, click here.

Before trial, an experienced, aggressive Florida criminal defense attorney may move to suppress a defendant’s post-arrest statements on the grounds that when they spoke to police, their Miranda waiver was not knowing, intelligent, and voluntary. This may be for various reasons, including:

• Law enforcement Mirandizing someone in a language that was different from their native language
• Law enforcement downplaying the significant of Miranda rights (e.g. “These are just a formality, don’t worry about them…”)
• The defendant experiencing a mental state (e.g. heavy medication after a surgery, very low IQ) that rendered them unable to fully understand their rights and appreciate the consequences of waiving them
• Law enforcement did not sufficiently inform the defendant of their Miranda rights (e.g. misled them about when they could get a lawyer)

The last of these, an allegedly “incomplete” Miranda warning, is a major legal issue. If someone is convicted and an appeals court finds the Miranda warning they received was incomplete, the admission of that confession at the defendant’s trial could lead to a reversal of the conviction (if it was not harmless error).

In various Florida criminal cases, defendants have appealed their convictions on the grounds that their Miranda warning did not specify they had a right to a lawyer present both before and during police interrogation. 

As this is a critical “Miranda right,” failure to make clear the right to counsel before and during questioning may lead to a defendant’s conviction being reversed on appeal (if a confession was erroneously introduced at trial and this was not harmless error).

In one major case, a top Florida court ruled that a defendant was sufficiently informed of his right to counsel when he received his Miranda warning. Let’s take a look at Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009) and what it means for your Miranda rights in Florida.

KEY CASE: Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009) 

In Alvarez, the defendant (Alvarez) was arrested on suspicion of murder. He was taken in for questioning and advised of his Miranda rights. Alvarez was ultimately charged and convicted.

Before he was interrogated, a detective told him that the Constitution “requires me to inform you that you have the right to remain silent.” The detective then gave Alvarez a preprinted “Miranda form” that read the following:

• You have the right to remain silent. Do you understand that right? 
• Anything you say may be used as evidence against you in Court. Do you understand? You have the right to call or obtain an attorney at this time and have one present now or at any time during questioning. Do you understand that right? 
• If you cannot afford to hire an attorney, the Court will appoint one for you without cost. Do you understand? 
• If you decide to answer questions now, you have the right to stop answering at any time during questioning. Do you understand that right? 
• Knowing these rights, do you wish to talk with me or us at this time?

Alvarez signed the form, and did not at first confess to killing the victim. After the interrogation concluded, Alvarez was subjected to a “voice stress test” (e.g. a “lie detector”) and was advised of his Miranda rights again – this time out loud. The detective said: 

“Let me advise you of your Miranda warnings. You have the right to remain silent. Anything you say may be used against you in court. If you, you have the right to call an attorney and have him present any time during questioning. If you decide—if you cannot afford an attorney one will be appointed to you without cost. If you decide to answer any questions (indiscernible) stop answering questions. Do you understand your rights?”

Alvarez waived his rights again and submitted to the test. Following the test, he was interviewed again – but did not receive a third Miranda warning. During that interview, Alvarez confessed to the crime. 

Before trial, Alvarez had moved to suppress his confession on the basis that the Miranda warning he received was inadequate. Alvarez argued that because officers did not explicitly tell him that he had the “right to have counsel appointed for him prior to his interrogation,” his subsequent Miranda waiver was invalid.

The trial judge denied the motion, finding Alvarez being informed he had the right to a lawyer “at any time,” including “now” and “during questioning.” The judge found this was sufficient to advise Alvarez that his right to counsel kicked in immediately. His confession was played for the jury at his trial, and he was convicted.

Alvarez appealed to Florida’s 4th District Court of Appeal (Southeast Florida), reiterating the claim that he was not sufficiently informed of his right to counsel before interrogation. However, the 4th DCA rejected his argument and affirmed the murder conviction:

“Here, the warning, given both orally and in writing, adequately informed Alvarez that he had the right to a court-appointed attorney at all times, both prior to and during questioning. Specifically he was told he had the right to an attorney “at this time,” which was before the questioning started. Police officers need not give a talismanic incantation of a suspect’s constitutional rights, provided the statement given is a fully effective equivalent. See California v. Prysock, 453 U.S. 355, 359–360, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). The warning sufficiently told Alvarez he had the right to counsel both prior to questioning “and to have one present now or at any time during the questioning.”

In essence, the 4th DCA found the Miranda warnings given by the detectives to Alvarez were clear about when his right to have counsel present applied, even though the officers did not use the literal language of “prior to the start of interrogation.” 

As a result, the 4th DCA found his confession to the murder was properly admitted at trial – so his conviction was affirmed.

In sum, Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009) is a significant development in Florida’s corpus of case law surrounding Miranda rights and “incomplete” Miranda warnings. The 4th DCA found:

• Alvarez was told he had the right to a court-appointed attorney “at this time,” which was logically the same as saying “prior to interrogation” (since interrogation had not started yet)
• As a result, his Miranda warning was not constitutionally deficient (e.g. it was proper)
• This made Alvarez’s confession “fair game” to use against him at trial
• Because the playing of his confession at trial to the jury was not error, his conviction was affirmed

Florida’s criminal defense community should take note of Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009), as it reinforces that law enforcement must inform a suspect that they have the right to an attorney before and during questioning when reading their Miranda rights.

However, as the 4th DCA noted, this does not have to be a “talismanic incantation.” If officers use slightly different words to convey the same thing (e.g. saying “you have the right to a lawyer right now and during interrogation” as opposed to “prior to and during interrogation”), this is not an adequate legal basis to find a Miranda waiver was involuntary. 

If someone is arrested and formally charged in Florida in a case involving a Miranda waiver that was not knowing, intelligent, or voluntary, it is critical to find experienced and trusted legal representation as soon as possible. This decision could make the difference in whether or not someone faces a lengthy prison term and hefty fines.

Criminal Defense Attorney in Tallahassee, FL

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the Tallahassee criminal defense lawyers at Pumphrey Law have decades of experience fighting drug charges on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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