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Arrested for DUI . After arrest was given the CAB test was given . No Miranda rights were ever given . Is CAB admissible ?

Tampa, FL |

My daughter was never read Miranda rights . I understand that they are used for interrogation , but does it apply to tests as well AFTER being taken into custody ? The Breathalyzer was given at the station after she was handcuffed and detained . Again , no Miranda rights were given to her . She has never had even so much as a speeding ticket - extremely clean record .

Attorney Answers 8


  1. I will defer to responses from lawyers licensed in FL, but in the meantime I will answer this as I would if your daughter had been arrested in PA. Here she would not need Miranda warnings in conjunction with chemical testing for blood alcohol levels, but she would have to be advised of the Implied Consent Law which mandates an automatic one-year license suspension for refusal to submit to breath or blood testing. She very much needs to have the assistance of a qualified criminal defense attorney in her area with experience in the handling of DUI cases. Most here offer free consultations. I strongly urge her to take advantage of that to start interviewing candidates for the job of representing her. There are likely things that a good attorney can do if engaged in the beginning to avoid having this remain on her record, which will have longterm negative consequences for her.


  2. Miranda warnings are not necessary unless the defendant is in custody and not free to go and statements made by the defendant made be used in court. People watch too much television and seen to think Miranda warnings are always required.


  3. Yes in Il Miranda is not not applicable as the breath test is not "testimonial".


  4. Miranda does not apply to the officers observations nor does it apply to the field sobriety exercises. In a DUI, Miranda does apply once you have been arrested, anything asked after the arrest is subject to being limined out of the case.

    She only has 10 days to challenge the administrative suspension of her license. This has nothing to do with the criminal case. Consult with a DUI attorney first thing Monday.

    Visit our website at www.mastrolaw.com to ask your legal question or call for a more detailed free consultation for your legal issue. The information presented is for information purposes only based on the information provided. An attorney client relationship is not formed.


  5. I agree with my colleagues. The best thing you can do is consult with an retain an experienced criminal defense attorney as soon as possible.


  6. No. Unfortunately courts have held that the BAC is not testimonial and doesn't require Miranda, as driving is considered a privilege, rather than a right.

    Tampa area law enforcement's basic ideology is to just arrest someone for a DUI as long as there's some scintlila of probable cause. But just because an officer subjectively thinks that probable cause exists, it doesn't mean it actually objectively exists. For instance, often times the officer alleges that he smelled an "odor of acohol on the driver. . ." but an odor of alcohol is only evidence of consumption, not IMPAIRMENT. Therefore there exist more effective ways to fight and beat your daughter's case. The way I defeat my client's DUI charges are by challenging the reasonable suspicion or the probable cause to detain my clients through a motion to suppress. If one is able to successfully demonstrate the officer lacked probable cause to detain the driver, all evidence collected by the officer after the unlawful state action becomes fruit of the poisonous tree and cannot be presented at trial- INCLUDING the field sobirety exercises and BAC results. The State has no choice but to dismiss the charge at that point. You're welcome to schedule a free consultation with my office at your convenience by calling 813 226 2144. Good luck to you.


  7. I am sorry, Miranda doesn't apply to the breathalyzer test. Please feel free to pass my contact information along to your daughter so that I can offer her a complimentary consultation.


  8. Very good question. The trouble with "Miranda rights" is that people get their ideas about them from watching television shows, which are sometimes good shows, but rarely give you the whole story. When the police test your breath, they are not compelling your "testimony," and because the fifth amendment to the constitution only protects you from "testifying" against yourself, your breath and/or blood and plenty of other things may be done without your consent or even notice. So no, your daughter was no entitled to Miranda rights before administering the breath death. BUT, she could have refused to take it. Did you or she know that?

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