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 cop’s failure to read rights mean 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 remain silent.
What does it mean in California? Reading of Miranda Rights is completely up to the discretion of the cop in DUI cases.
So why is reading one’s rights only an option? How is the reading of rights not a requirement?
The suspect 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 means, if you drive 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 suspect of California’s 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) available 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 vehicle, or a blood alcohol content of .08 percent or more at any age, or refusing a test will result 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 result 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 result 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 suspect has no right to an attorney before deciding whether to do a chemical test.
Miranda Rights are not normally given in DUI cases. 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 remain 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 admit 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 cases 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 even 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 even 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 cop’s questions.
Those answers helped the cop decide whether to arrest for DUI. In fact, the cop normally 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 mean custody and the cop’s not supposed to ask unless the suspect is “Mirandized.” But by then, there’s usually no need to ask so no need to Mirandize.
The cop never takes the suspect to the police station, in a room, under the lights, looking at the suspect, asking: “So, you WERE DUI, right?!”
So the bottom line is that in DUI situations, a suspect 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 driver’s license.
Compared to other criminal cases, one’s right to remain silent and right to an attorney are generally not a determining 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 suspect statements made once in custody may not be legally used against the defendant in the DUI trial.
In that instance, the court would suppress the statements so the prosecutor could not use them at trial. So if the cop did not read the suspect his or her rights, the cop cannot use statements like this at trial, e.g. during the ride to the station, 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.
Rick Mueller is a San Diego DUI Attorney who has been practicing DUI law since 1983. He received his Juris Doctor degree from Chicago Kent College of Law and is also a licensed attorney in Illinois.
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