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Can I get my case dismissed
if the cop
didn't read me my Miranda rights?
The most damaging evidence in a drunk driving case, as in most
criminal cases, often comes from the defendant's own mouth:
admissions. Although the statements may be spontaneous and thus not
subject to suppression on Miranda grounds, they usually come in
reply to a series of questions asked by the investigating officer.
These questions tend to follow a rather routine format, and are
generally geared to determining what and how much the suspect has
had to drink; when and where he or she has been drinking; whether
the defendant's memory or mental awareness has been impaired ("Where
are you? What time is it?"); the possible presence of drugs or
medication; and the absence of any illness or medical
condition, to preclude later claims that they affected his or her
symptoms or performance. In fact, these
questions can be
so predictable that many law enforcement
agencies have formalized the interrogation
in DUI cases by printing a list of questions
in their arrest report forms.
The usual admissions issue in a drunk
driving case involves the question of
exactly when the officer should have given
the Miranda advisements. The usual
prosecution argument is that although the
defendant was not free to leave, the
questioning was part of a preliminary
investigation, conducted before the
individual had been placed in custody, and
thus the advisements were not yet required.
In fact, however, the officer will almost
always have decided at a very early stage
that the suspect was intoxicated. Long
before the officer begins any questioning,
he or she will probably have observed such
symptoms as erratic driving, alcoholic
breath, bloodshot eyes, thick and slurred
speech, and staggering out of the car.
Rather than being investigative in nature,
the questioning is usually a means of
gathering evidence with which to "nail the
lid shut."
The focus, then, is on
when the warnings should have been given to the defendant. This
involves a legal issue and a
factual one. The legal issue concerns what standards
are to be applied: should warnings be given
only when a suspect has, in fact, been
arrested? When the suspect's freedom was
significantly curtailed? When there existed
probable cause to arrest? Are the Miranda
standards different in DUI cases? The
factual issue involves the question of what,
in fact, happened: when was the defendant,
in fact, arrested or deprived of his or her
freedom in a substantial way? When did the
officer have probable cause to arrest? In
resolving these issues, it must be kept in
mind that this is a subject about which
police officers are commonly very willing to
commit perjury. The simple fact is that courtwise officers will rarely admit what
they know to be true: that they have
probable cause to arrest a suspect before
they questioned the suspect. |
