DUI and Miranda rights

As I wrote in another post, the Miranda rights are important Constitutional rights that must be given to you before any custodial police interrogation.  “Interrogation” is any direct questioning by officers about your involvement in suspected criminal activity.  Its whole purpose is to get incriminating statements from you.

But in virtually every DUI arrest, the officers ask several questioning geared toward getting evidence that goes right to the heart of the crime – Have you been drinking?  How much?  Do you feel the effects of the alcohol?  They do all this without ever advising you of your rights.  How is this okay?

Under the law, during this DUI “investigation,” you are “detained” by the officer.  If the court determines that you were only detained, the police are not required to read you your rights.  Does this mean that you have to just take it?  Absolutely not.  You do not have to answer any questions during the investigation.  There is nothing wrong or illegal about refusing (I’d suggest doing this politely) to answer any questions about alcohol consumption or other aspects of driving under the influence.

This goes even further.  The standard “sobriety tests” given on the side of the road (touch your nose, walk the line, etc.) are also not mandatory to complete.  You have absolutely every right to decline to participate in them.

So what if you’re reading this and it’s too late – you were arrested for DUI and answered the questions and did the tests.  Is it over?  Absolutely not.  As with every criminal charge, aggressive representation and challenging every piece of evidence the prosecution wants to introduce against you is crucial.  Were you really only “detained” by the police or did it elevate to being “in custody” where you were required to have your rights read to you before any questioning?  Were the field sobriety tests properly given by the officer?  Did they interpret them correctly?  These and many more issues should be examined before you give up and plead guilty without a fight.

1 Comment

  1. Ken Ramsey - October 23, 2008 at 12:32 pm

    “This goes even further. The standard “sobriety tests” given on the side of the road (touch your nose, walk the line, etc.) are also not mandatory to complete. You have absolutely every right to decline to participate in them.”

    What legal support do you have for this claim?

    IOW What orders of action can I refuse and what orders of actions am I required to perform?

    I have seen where the demand for a citizen to exit a vehicle is ‘required’.
    MARYLAND v. WILSON 519 U. S. 408(1997)

    **************
    Mr. Ramsey –

    Thank you for visiting my site and your question. Under California law, the only testing that is required of a driver suspected of driving under the influence of alcohol is an “official” chemical test. If a person is suspected of driving under the influence of alcohol, they must submit to a chemical test of their breath or blood to determine the blood alcohol level. Vehicle Code section 23612 is the implied consent law. By virtue of driving a motor vehicle on California roads, you are deemed to have given your consent to submit to chemical testing. Refusal of the required chemical test will have consequences of license suspension and may be used against you in a criminal trial if the proper admonitions have been given.

    The only field sobriety test mentioned in the Vehicle Code is the P.A.S. (Preliminary Alcohol Screening) device. That is also listed in Vehicle Code section 23612. Even the P.A.S. is voluntary. Section 23612 requires that officers that are requesting a driver to complete the PAS be advised that they have a right to refuse that test.

    The case you mentioned, Maryland v. Wilson, dealt with the officers’ ability to demand that passengers exit a car lawfully stopped.

    Again, thank you for your comment and question. I hope my answer clarified the issue for you. Feel free to contact me at my office if you would like to discuss it further.

    Joe Dane

18 Trackbacks

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  13. […] Keep your rights in mind, should you find yourself being stopped or investigated for a DUI.  You do NOT have to admit anything incriminating, even if you’re not given your Miranda warnings.  See this link for details. […]

  14. […] Field sobriety tests are voluntary (but law enforcement won’t tell you that). […]

  15. […] Barkley could have done well to follow the advice I’ve previously posted.  In California, field sobriety tests are voluntary.  You don’t have to submit to anything except an official chemical test to determine your […]

  16. […] later. But coooperating doesn’t mean you have to help them build a case against you. You can decline to answer any questions beyond your identity (such as “Have you been drinking?”) and you’re NOT required […]

  17. […] recent post sparked a comment and question from a visitor to my site. He asked, “What orders of action […]

  18. […] Barkley could have done well to follow the advice I’ve previously posted. In California, field sobriety tests are voluntary. You don’t have to submit to anything except an official chemical test to determine your […]

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