The Miranda decision has actually been narrowed down, and there’s almost an exception for the Miranda rules in a DUI case. Miranda applies where somebody is in custody. This means they’re no longer free to leave, and the person is interrogated, which means they are questioned.
What we will see in a DUI case is officers do not read the Miranda rights; they do not tell a person what the Miranda rights are because they don’t believe that the person is actually arrested and they’re not being interrogated.
Miranda Rights Only Apply after You Have Been Arrested and Are No Longer Free to Leave the Scene
The police seem to be having a friendly conversation on the side of the road and if the person is not arrested, then they do not have to have the Miranda rights read to them. The Miranda rights only apply after the person has been arrested and if they’re going to be interrogated. In a DUI case, all of the investigation or almost all of the investigation is done before the person is arrested, so Miranda does not apply before the person is arrested.
In a DUI Investigation, Most of the Investigation Is Complete before the Officers Make an Arrest; Therefore, the Police Rarely Mirandize
Once the person is arrested, the officers typically don’t have any more questions to ask. They’ve already gone through their entire investigation and have gotten all the answers that they need. The only thing left to do after the person is arrested is a chemical test, breath or blood, and the person has to submit to that, and if they don’t, they’ll be written up as a refusal.
So Miranda, many times, does not apply and what we have to do in court is fight to explain that the person was in fact arrested long before the handcuffs went on and the person was put in the back of the car.
For the majority of the cases in DUIs, the officers do not read the Miranda rights. Everybody knows that they are supposed to get read their rights when they’re arrested and questioned, and they often will raise that as an issue. They say, “I was not advised that I had the right to remain silent and that I was arrested.”
We have to discuss whether or not they were in fact arrested and whether or not Miranda applies; unfortunately the courts have held many times over that pre-arrest questioning is not an interrogation and Miranda does not apply.
Los Angeles County Police Use Preliminary Breath Test Devices
The police department in Los Angeles County does use preliminary alcohol screening devices or what are referred to PAS devices, and preliminary alcohol screening devices vary from agency to agency. The Los Angeles Police Department may use one device like the Alco-Sensor 5. The California Highway Patrol may use the Alco-Sensor 4.
The Los Angeles County Sheriff’s Department may use a life lock, and there are different devices for different agencies and different officers. They are used and whether or not they are reliable, whether or not they are admissible as evidence in court, is a different question.
You May Refuse to Undergo the Preliminary Breath Test
Many times prosecutors and judges will consider a preliminary breath test as valid. Prosecutors and judges will rely upon them, and they do come into evidence. They are not the chemical test. They are not the one that you are required to do, so you could elect not to do a preliminary alcohol screening test if you’re being investigated or arrested for a DUI.
You do have to do the chemical test, either a breath or blood test, which is typically done back at the station but sometimes in another location. Sometimes they will have a mobile unit, such as at a DUI checkpoint, where they can walk you over and give you the actual chemical test literally minutes after you’ve been stopped.
Personal Attention
