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Is it going to be a he said she said case if the officer did not read me my rights after handcuffing me?

El Cajon, CA |

Arrested for 148A! and 647F.

Attorney Answers 5


  1. It could always be he said she said potentially, but not reading your rights has more to do with the ability of the prosecution to use your post arrest statements against you.


  2. Was anybody else around to witness the incident?


  3. Any charge of resisting arrest is going to be a battle of witnesses between the cop and the defendant. I don't think Miranda will be relevant in yout case, however.

    When the police fail to read a person their Miranda Rights after arresting them, the result is that the prosecution is not allowed to use statements that the defendant makes. The charges are NOT, as many wrongly believe, dismissed.

    As for the charge of being drunk in public, the officer will need to testify that you were so intoxicated that you could not care for your own safety or the safety of others.

    It is interesting to me to find both of these charges brought at the same time. What the prosecutor is essentially saying is that you were so drunk that you couldn't care for your own safety, meaning that you were falling over drunk, BUT that you were able to form the intent to physically resist the police. I have always thought that these charges were incompatible together, though I have seen them charges together a disturbing number of times.


  4. In 1966, the United States Supreme Court ruled in Miranda v. Arizona that a suspect’s pretrial statement cannot be used against him if it resulted from a “custodial interrogation” by the police unless that suspect was previously informed that:

    1. The suspect has the right to remain silent;

    2. Anything he says can be used against him at trial;

    3. He has the right to the assistance of a lawyer; and

    4. If he cannot afford a lawyer, the government will provide him with one.

    The Supreme Court was concerned with the inherently coercive nature of police interrogations. Thus, the Supreme Court wanted to ensure a suspect knew the rights he was waiving by speaking to the police.

    The Miranda rights embody very important constitutional safeguards against government tyranny. A suspect can remain silent in the face of police questioning because the government carries the burden of proving its case and the suspect is not required to explain himself. However, if a suspect waives his right to silence and speaks to police, that suspect must know that everything said is “on the record” and not confidential. Furthermore, since our criminal justice system is very complex, all suspects are entitled to the assistance of an attorney who can provide important legal advice and guidance. The assistance of an attorney is so essential to the fair and just disposition of law that the government will provide a public defender to those charged with a crime if they cannot otherwise afford a private attorney.

    Miranda’s applicability is limited to “custodial interrogations.” A suspect is in “custody” if his freedom of movement is restricted by the police. Thus, a person is considered in police custody when locked in a police car, held in jail, or otherwise unable to leave voluntarily. An “interrogation” occurs when police attempt to elicit an incriminating response from a suspect. Miranda warnings are only required in those situations where a suspect is in custody and responding to police questioning. For example, police need not give Miranda warnings to a suspect who is free to leave the police station at any time. Likewise, Miranda warnings are not required when a suspect spontaneously confesses to a passing police officer.

    In your situation it will depend on whether you were under arrest at the time you spoke, or whther you where simply "detained" and handcuffed for the safety of the officer. Also, it will also heavily depend on whether your statements were in response to questions or simply unsolicited comments. This is a very complicated area of the law and you should obtain a free consultation from a defense attorney to see what can be done on your behalf.

    Law Office of Andrew Limberg, APLC 380 S. Melrose Dr., #329 Vista, CA 92081 (760) 806-4381


  5. Hire a locally experienced criminal defense attorney as soon as possible so they can begin investigating your case.

    Law Offices of David Shapiro 3555 4th Avenue San Diego, CA 92103 (619) 295-3555

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