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Will my case be dismissed or all evidence including tests, if i was not read Miranda Rights under the following circumstances?

Paramount, CA |

I was arrested for 148 PC-Obstructing a peace officer and transported to the Police station for booking.

WITH OUT READING ME MIRANDA RIGHTS!

At the station (according to the report) i was asked again if i had anything to drink that evening and i said "no" Then i was asked if i had any alcohol beverages at all that day and i said "yes" and many other question.

I was told by the police officer that he formed the opinion I was possibly operating a motor Vehicle under the influence of alcohol and ask me if I would be welling to take F.S.T. I responded yes.
Because of these interrogation with out Miranda Rights read to me, i was further investigated for a DUI by performing a Field Sobriety Test at the station and blowing with an insufficient result. Was booked for a refusal

Attorney Answers 8

Posted

A Miranda warning is required when (1) you are in custody, and (2) there is interrogation. The police will likely argue that while they were initially questioning you you were not "in custody," and therefore you were not required to be read your Miranda rights. Did the police read you your Miranda rights when you got to the station?

Also, your question is unclear about why the police believed you were driving under the influence. Were you pulled over while you were in a car?

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Asker

Posted

Hi Robert, I was pulled over that night in a parking lot and was arrested for 148 PC-Obstructing a peace officer after refusing to step out the car. The police report clearly states "i was arrested and trasported to the police station for booking. I was never read Miranda Rights before being interrogated. The police report states: At the station, I asked (me) again if he had consumed any alcohol beverages this evening.

Robert Alexander Comley

Robert Alexander Comley

Posted

The police can ask you to exit a vehicle, and you are still not in "custody." Therefore, the police may have developed probable cause for your arrest without needing to read you your rights. However, it sounds like you may have been charged with obstructing, and then a DUI. Because of your unique facts, you should consult with an attorney, or a public defender if you cannot afford private counsel. However, many private attorneys will provide you with a free consultation. Best of luck.

Asker

Posted

The arresting police officer stated on hes report as follow: " I arrested (me) for 148 PC-Obstructing a peace officer and transported him to the police station for booking. (That clearly states i was arrested) The police written report continue as follow: At the station, I asked (me) again if he had consumed any alcoholic beverages this evening. The police report continues on with more interrogation but at any point was i read Miranda Rights at the police station while under arrest. Neither did the police officer state that in hes written police report.

Robert Alexander Comley

Robert Alexander Comley

Posted

Like the other comments have suggested, Miranda issues are not so black and white. And, a Miranda violation will only exclude some statement -- other evidence, like you actions, are not excluded as "fruit of the poisonous tree" from a Miranda violation. You can call me if you'd like for a more in depth discussion of the issues you are facing. My consultations are free and confidential. (310) 930-6156.

Posted

Defendant statement elicited through custodial interrogation is not admissible unless preceded by a Miranda advisement. You need a lawyer ASAP to thoroughly examine and challenge you charges. Best of luck.

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Posted

Failing to read you your Miranda rights only means that the DA cannot use your statement in his case in chief against you. It does not entitle you to a dismissal of any charges filed.
You should at least contact an attorney and consult about the charges.

The above is not intended as legal advice. The response does not constitute the creation of an attorney client relationship as this forum does not provide for a confidential communication.

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Asker

Posted

Thank you

Posted

You must be mirandized only prior to interrogation that seeks answers to questions likely to incriminate you. Generally, on a DUI stop, the police will list other non-verbal factors to justify the arrest, such as the smell of alcohol on your breath. The questioning then, if challenged, is not necessarily fatal to their case.

The FSTs are also non-testimonial and do not require Miranda prior thereto. They are designed to be almost impossible to pass, thus giving the police the right to take you in for a chemical test.

The chemical tests are also deemed by law to speak for themselves and thus non-testimonial, making Miranda unnecessary.

You say you were booked for a 148 PC violation. But you also mention they deemed your breath test a refusal. Are you not then also facing a DUI charge? A refusal raises a legal presumption of DUI. If you are, and they took your license, a DMV hearing MUST be requested and scheduled within 10 days of the stop, otherwise your license will automatically be suspended. The DMV proceedings is entirely separate from any court case.

Clearly there are several issues that might cause you harm here if not immediately addressed. Call me for a free consultation, at which time I can also provide a fee quote should you wish to retain me.

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Asker

Posted

The arresting police officer stated on hes report as follow: " I arrested (me) for 148 PC-Obstructing a peace officer and transported him to the police station for booking. (That clearly states i was arrested) The police written report continue as follow: At the station, I asked (me) again if he had consumed any alcoholic beverages this evening. The police report continues on with more interrogation but at any point was i read Miranda Right at the police station while under arrest. Neither did the police officer state that in hes written police report. For that reason the arrest was changed from obstructing to dui.

Neil James Fraser

Neil James Fraser

Posted

What were the circumstances of the arrest? Were you stopped while driving a vehicle? Did the cop see you behind the wheel of a vehicle? In what manner did he claim you were obstructing him? Usually a 148 charge arises out of actions rather than words, thus making Miranda unnecessary. A question does arise as to the questioning about alcohol subsequently but it has to be examined in the totality of the circumstances and, to do so, I would need to full story. When did this happen? I'm concerned about the DMV suspending your license if you did not request a hearing within the ten-day period. If the police took your license and gave you a pink temporary license, that is your most immediate concern. However, if you have the police report, it may well be that you have already been to court at least once. In order to give you solid advice, I'd need to speak with you. I can be reached at 213-324-4206.

Asker

Posted

This happen in a parking lot mall on 4/18/13. I was verbally pulled over for driving around the parking lot with loud music and tail gating a security guard. The police officer waives me down as I was passing by them and asks me to pullover. When he approaches my car I asked him why he pulled me over and he responded I was following a security guard vehicle. On the police report he stated to step out the vehicle and I refused to several times and he smell odor of an alcoholic beverage. Even after other police officer’s show up I refused to get of my car after I kept asking if I was being arrested and they said no and that s why I was refusing. One officer said he would like to conduct a dui investigation and ask me to step out the car and I refuse. Then warned me they would arrest me for delaying the investigation. I was forced out the vehicle, arrested and transported to the station. The police report states that I was arrested for obstructing a peace officer. At the station I was further question with no Miranda Rights read to me.

Neil James Fraser

Neil James Fraser

Posted

So, if I understand you correctly, you voluntarily stopped when waved down by police, who then told you he did so because you were following a security vehicle round a parking lot. Was this cop out of his car or did they light you up? The manner in which you were stopped may be key because, once you have been contacted by police, they have the right to order you to step out of the car even when merely detaining you for investigation. Usually they justify such an order on the grounds of officer safety. These days that is perfectly permissible if there is probable cause to contact you in the first place, as is a pat-down search to make sure you have nothing that can be used as a weapon. Neither requires you be mirandized first. A refusal to comply gives them grounds under the 148 PC catch-all to arrest you for obstruction. Thereafter it turns into a DUI investigation because, initially, the cop says he smelt alcohol on your breath. That also is the classic justification for initiating a DUI investigation and Miranda, again, is not required. At this point, I'd imagine, based upon what you say, that the cops are well pissed off at you and probably looking for a reason to screw you. These days you must submit to a breath, blood or urine test if the cops say they believe you've been drinking and driving. They only have to ask you once and, if you say no or say nothing, or even hesitate, they can count that as a refusal and are under no obligation to ask you again. I bet that's what they did. A question as to whether you should have been required to take a test is one that must be litigated in any subsequent court proceedings. Your belief they had no right to make you take a test is not a valid reason not to comply and, if you "refused" by not blowing hard enough into the machine, the cops can claim that as willful and count it as a refusal. Clearly you annoyed the cops and, unfortunately, they know how to then manipulate the situation to try and give them grounds to arrest and charge you. Your best bet might be to challenge the right to stop you in the first place which, if successful, would collapse the entire case. This requires a 1538.5 motion and you need an attorney to do that for you if you want to have any chance of prevailing. Once again, though, I ask whether or not the cops took your license and issued you a temporary? If so, you MUST set up a DMV hearing this week. A failure to do so will result in a long license suspension, regardless of whether or not there is any criminal filing. Please do NOT ignore this - the DMV acts entirely independently from the courts. I can help you on both matters if you care to call. I realize you were only trying to act in a manner consistent with what you believed are your rights. Unfortunately, those rights have suffered considerable erosion over the past ten years and the cops know exactly how much they can push any given situation. However they make mistakes, especially when they just decide to make an arrest because an individual pissed them off. The key is to find the weakest point in their factual recitation and go from there.

Asker

Posted

Thank for your response, The police officer was out of hes car and shinned hes flash light at me as i was passing by and ask me to park on the parking stall he pointed at. in this case how can we argue the stop? they said i was following to close, tail gating and loud music. Yes i was given a temporary licensed (pink paper)

Neil James Fraser

Neil James Fraser

Posted

The point is you were not stopped because of any suspicion of alcohol-impaired driving, which is what the cops usually point to as the reason for a regular DUI stop. Did you take a hand-held breath test at the scene? The question is did the cops have probable cause to stop you? The fact you pulled over voluntarily might be creatively argued to negate probable cause for the subsequent DUI investigation. The real concern is you are facing a DUI with a refusal. They are tough because, of course, there are no chemical test results to show whether or not you were DUI. The law gets round this by presuming you to be. The DMV penalty for a first-time refusal is a one year license suspension and up to 3 years of requiring an ignition interlock device on your car after your license is reinstated. You can see, therefore, that it is important to fight this case in a manner most likely to produce a result to save your license. Look on the pink slip for a DMV number to call to set up your hearing and arrange to set it on the most distant date they offer you. Once it is scheduled, your temporary license remains valid until the hearing and determination. A failure to set up the hearing within 10 days of the stop will result in a one year ban beginning 30 days after your arrest date, with no avenue of relief. Call me if you want to discuss retaining me. I do both the DMV and court actions.

Asker

Posted

oh ok i see, and how can you argue that? i didnt take a breath test at the scene, when i was forced out the car i was arrested righ oway, then they search my car witch is not noted in the police report. After that i was trasported to the station to be booked for 148 pc. Then the dui investigation took place at the station.

Neil James Fraser

Neil James Fraser

Posted

If I have it right, the police were called by private security because of loud music and the fact you seemed to be following security around the parking lot. Without more, that would appear to be infractions at most. Absent an indication you were drunk or your driving was impaired, the cops are responding to a noise complaint. If there was a delay between flagging you down and turning the investigation into a DUI - as I believe you say there was - it can be argued the cops had enough for an infraction citation only. They will argue your lack of cooperation led them to arrest you, and then determine you might be DUI but probable cause to stop for a DUI was certainly initially absent.

Asker

Posted

This is the actual police report, i didnt include the details on the F.ST On 4/18/13 at approximately 0145 hours, i responded to Acapulco’s restaurant (its located in the mall parking lot witch is private property). In regards to subjects fighting in the parking lot. While officers were motoring the parking lot, I observed a black 2003 s 500 Mercedes driving around the parking lot with the windows down. The music in the vehicle was so loud it could be heard from over 50 feet away. The vehicle drove around the parking lot as other vehicles were leaving the location. The black Mercedes continued to drive up and down the isles of the parking lot with the loud music emitting from the vehicle. The Mercedes then started tailgating one of the mall security cars as it drove around the parking lot. As the black Mercedes approached officer “A” and me, I shinned my flashlight on the vehicle and verbally told the driver, suspect Alex to park in the parking stall he was driving in front of. Alex Attempted to park in the parking stall, but left a portion of his vehicle blocking the open lane behind him. I told Alex to pull forward and properly park in the stall. Alex pulled the vehicle forward and almost hit the security car in front on him. He then stopped the vehicle over the white line at the top of the parking space and turned the car off. I told Alex to step out of the car and he said, “ I’m not”. I told Alex again to step out the car and he said, “ I’m not go in to step out the car”. While I was speaking with Alex I could smell the odor of an alcoholic beverage emitting from his person and breath. His eyes were bloodshot and watery. It was difficult to understand Alex because his speech was slurred and mumbled. I asked Alex if he had consumes any alcoholic beverages today and said “No”. I again told Alex to get out of the car and he rolled up his window and said, “There is no reason” I continued to tell Alex to step out the car and he refused. Alex said, “I didn’t commit a crime”. “Nothing”. Sergeant C responded to the location and spoke with Alex. Sergeant C asked Alex ‘s driver’s license. Alex refused to give him hes driver’s license and held it against the inside of the window. Sergeant C told Alex we wanted to conduct a DUI Investigation to make sure he was okay to drive. Sergeant C told Alex numerous times to step out of the vehicle and he refused. Corporal D then advised Alex if he did not cooperate with us, he would be arrested for delaying our investigation. Corporal D told Alex if he did not exit the car, we will be forced to break the window and remove him from the vehicle. Sergent C told Alex to step out the car and he again refused. Sergeant C told Alex to roll the window down and hand us his driver’s license and he said “no”. Alex said he will open the trunk but not his door. Alex asked what we needed and Sergeant Lacy told him we needed his driver’s License. Alex then started the vehicle and attempted to put the vehicle in drive. I told Alex to turn the car off and he did so. Officer A reached inside of the vehicle through the sunroof and unlocked the vehicle’s doors. I opened the driver’s door and escorted Alex out of the driver’s seat. I arrested ALEX for 148 PC-Obstructing a peace officer and transported him to the police station for booking. At the station, I asked Alex again if he had consumed any alcoholic beverages this evening an he said “no”, Just Water” I asked Alex if he had consumed any alcoholic beverages at all today and he said, “Yes” I asked him what he had to drink and he told me he had three 12 ounce “bud light” beers. I asked him when he started drinking the beers and he told me 1600 hrs. I asked him when he stopped drinking the beers and he said 1800 hrs. I asked Alex if he was feeling the effects of alcohol and he said “no” I asked Alex where he consumed the beers and he said he had the at the (local Billiards). I asked Alex if the vehicle had any mechanical problems and he said “no” I asked Alex if he had any physical problems and he said “no” I told Alex I formed the opi

Asker

Posted

I told Alex I formed the opinion he was possibly operating a motor vehicle under the influence of alcohol and asked him if he would be willing to participate in a couple of field sobriety tests and Alex said, “yes” I COMPLETED TREE TESTS. Based on Alex’s subjective signs and symptoms, and how he demonstrated the field sobriety tests, I formed the opinion he was driving under the influence of alcohol. I asked Alex if he would submit to breath test or a blood test to determine his blood alcohol level. Alex agreed to a breath test. Using the department issued Datamaster (#12345), Alex attempted to supply me with two breath samples. Alex would not blow into the Datamaster and both attempts were insufficient. See attached for further. I asked Alex if he would like to submit to blood test and he said “no”. I then read Alex the refusal on DMV form and supplied him with his temporarily license. Alex was later booked for 23152(a)(b) VC- Driving under the influence or alcohol and was later released with a citation.

Neil James Fraser

Neil James Fraser

Posted

Very different from the impression I got from your posts. I don't know how much of the report you dispute but, if we assume for the moment the facts therein are accurate, your driving did raise a reasonable suspicion of alcohol impairment. Then it is stated alcohol was smelt on your breath. These are reasonable grounds to detain for investigation of DUI. Your subsequent behavior, if the report is accurate, clearly fits the elements of a 148 PC violation. That alone is sufficient for arrest. I believe you claim you passed the FSTs. The cop says no. Frankly they are meant ti be failed - they are very difficult to perform at the best of times. I had a cop fail his own demonstration of an FST in front of a jury trying to demonstrate it. What does that tell you? The refusal is based upon your inability/refusal to blow hard enough for a read on the breath test and your refusal to submit to blood being drawn. That constitutes a clear refusal. Assuming, again, for this discussion, the facts in the report are, in the main part, accurate, the cops actually acted with considerable restraint and gave you every chance to complete a test. If tried, their evidence will follow the report and a jury will have no trouble following along. You have big problems, my friend. That doesn't mean you don't fight both the DMV case and the court case to get the best possible result. The penalties are severe and its worth retaining counsel to work on reducing you possible exposure.

Asker

Posted

Thank you for all your advise..

Posted

Miranda applies to statements made while undergoing custodial interrogation. In other words, you have to be in custody (meaning you were not free to leave) and law enforcement must be asking you questions which might elicit and incriminating answer. The results of the field sobriety and breath tests will not be suppressed, however any statements you made might be suppressed and therefore would not be used against you at trial. But for a 148 and a DUI, it is doubtful that statements are needed to prove up these charges, so it is doubtful that the mere suppression of your statement would lead the the prosecutor moving to dismiss the case.

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Posted

Generally, the Miranda rule is meant to protect against self-incrimination and other rights. Evidence obtained in violation of Miranda (from an un-warned and in-custody interrogation) cannot be used against the defendant in a criminal proceeding. However, although this evidence cannot be used in the prosecution's case-in-chief, it may be used for impeachment purposes so long as the statements were only voluntarily made.

As a result, even if a statement was taken in violation of Miranda and evidence against you was obtained thereafter, there are other implications and you should contact a local and qualified criminal defense lawyer to assist you.

The information provided herein does not create an attorney-client relationship. The information provided is for informational purposes only and should not be relied upon. No reliance will be presumed. Only upon the hiring of qualified counsel can such advice be custom-tailored to the client's specific facts. Any prior results mentioned or referred to do not guaranty similar outcome. ADVERTISEMENT.

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Posted

A totality of the evidence needs to be reviewed before determining whether Miranda rights needed to be read to you or not.
As a former prosecutor we hammered "pre investigatory questioning to confirm or dispel" to effect. Consult an attorney to determine the facts of the case and what course of action works for you.

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Posted

Miranda could exclude any statements you made AFTER being placed in custody and "interrogated." Exclusion would mean that the DA cannot use as evidence at trial your statements that were obtained in violation of Miranda.

On the facts as you present them, it sounds like a fairly weak PC 148 charge. Hire a trustworthy lawyer and raise the Miranda issue with your attorney. Good luck!

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