The police only have to give Miranda warnings if you are: a) in custody; and b) being interrogated. Most initial street encounters do not require Miranda warnings. Even if Miranda is required and not given the case is not dismissed. The remedy for a defendant is suppression of the non-Mirandized statements. WIthout knowing the DA's version, Attempted Burglary seems excessive and the proper starting charge is criminal mischief but depending on the amount of damage (more then $250) that could be a felony too.
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Your PD is right. There is no issue about reading you your rights if you were not interrogated while in custody.
Not entering is why it was an Attempt Burglary rather than a burglary.
The fact that you didn't enter and waited 10-15 minutes is irrelevant for the arrest issue but may help in your final defense.
Joseph A. Lo Piccolo, Esq.
Immediate Past President, Criminal Courts Bar Association 11'-12'
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Your attorney is right, there didn't need to be a Miranda warning at that point in the case. You did not need to enter the store for attempted burglary, they can use the fact of the broken window to bring that charge. Keep working with your attorney and give them all the facts so they can work best in your defense.
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If there is not demonstrable intent to break the window to steal, then it is criiminal mischief at worst or even an accident. It depends upon what you said. Miranda violations only result in a suppression of your statement during the prosecutor's direct case but can be used if you take the stand and say something different than you stated to the police. Why do you doubt the public defender? S/he does nothing but criminal law and has superior knowledge in criminal law than most attorneys have, and as you see, s/he was right on the Miranda.
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