Will My DUI Case Be Thrown Out? Answers to This Great Question
The cop never read me my rights! One of the most asked questions of DUI Attorneys. A fair question. A great question.
Will my case be thrown out? Was the cops failure to read rights average my arrest was unlawful? (These must be the real questions the person arrested is reasonably thinking.)
What are the main Miranda rights? Right to an attorney. Right to keep silent.
What does it average in California? Reading of Miranda Rights is completely up to the discretion of the cop in DUI situations.
So why is reading ones rights only an option? How is the reading of rights not a requirement?
The speculate has no right to speak to an attorney before deciding whether to do a chemical test if arrested for suspicion of drunk driving.
California law includes Implied Consent. This method, if you excursion in the state and are lawfully arrested for a DUI, you (impliedly) give your consent to a chemical test, usually of your blood or breath.
Upon an arrest for DUI, the cop must tell the DUI speculate of Californias requirement of a chemical test (of blood or breath). The chemical test admonition form used for this purpose states:
1. You are required by state law to submit to a PAS (DUI Probation) or other chemical test to determine the alcohol and/or drug content of your blood.
2. a. Because you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol or drugs, you have the choice of taking a blood, breath or urine test.
c. (when applicable) Since the blood and breath test is unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. (when applicable) Since you need medical treatment, your choice is limited to __________ test(s), the only test(s) obtainable at ________________________.
3. If you refuse to submit to, or fail to, complete a test, your driving privilege will be suspended for 1 year or revoked for 2 or 3 years. A second offense within 10 years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of C.V.C. section 23140, or a separate administrative determination that you were driving with a blood alcohol content of.01 percent or more while under the age of 21, or.04 while operating a commercial means, or a blood alcohol content of.08 percent or more at any age, or refusing a test will consequence in a 2 year revocation. Three or more offenses within 10 years of any combination of the above violations, convictions or separate administrative determinations will consequence in a 3 year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also consequence in a fine and/or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test to take, or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.
As shown above, #5 indicates the speculate has no right to an attorney before deciding whether to do a chemical test.
Miranda Rights are not typically given in DUI situations. Why not?
Because when the cop confronts the driver, the cop is only conducting an investigation. In the investigative stage, the cop is not obligated to tell the person of his or her right to keep silent or right to an attorney.
The cop does not want the person to be silent. The cop wants the person to spill his or her guts, to let in to a number of things that the cop can write in a DUI arrest report and use to try to convict the person.
What happens in most DUI situations is the cop starts asking all kinds of questions designed to gather information to convict. This is done before handcuffing and arresting the person.
Because the person has not been arrested, there is not already a legal obligation to advise one of his or her rights.
Unfortunately for the person, he or she answers the questions most of the time already though he or she does not have to answer any questions by the cop.
So what happens? Well once the decision to arrest is made, the person is handcuffed. Then and only then does the law require the cop to advise a person of his or her rights.
The problem is, when the handcuffs go on, the cop already has obtained answers to the cops questions.
Those answers helped the cop decide whether to arrest for DUI. In fact, the cop typically needs to gather no more statements to put in his report to assist in the prosecution as the cop pretty much has everything needed to arrest at that point.
So after the cuffs, most cops avoid questioning. The cuffs average custody and the cops not supposed to ask unless the speculate is Mirandized. But by then, theres usually no need to ask so no need to Mirandize.
The cop never takes the speculate to the police stop, in a room, under the lights, looking at the speculate, asking: So, you WERE DUI, right?!
So the bottom line is that in DUI situations, a speculate has no right to talk to a lawyer before deciding whether or not to do the required breath or blood test. Implied consent is given by the driver when he or she applies for a drivers license.
Compared to other criminal situations, ones right to keep silent and right to an attorney are generally not a calculating factor in a DUI case.
There is a possible exception as there is with most laws. If the cop does decide to ask questions and interrogate, those speculate statements made once in custody may not be legally used against the defendant in the DUI trial.
In that example, the court would suppress the statements so the prosecutor could not use them at trial. So if the cop did not read the speculate his or her rights, the cop cannot use statements like this at trial, e.g. during the ride to the stop, the cop asks: How drunk were you? The person answers: I was pretty drunk. Those drunk statements would be suppressed and not admissible in court.