A friend got pulled over last night, cause the cop thought that he was drinking and driving. He cuffed him and took him to jail to do a breathalizer, which he totally passed. So, shouldn't he have been read his rights??
2006-11-26 12:30:10 · 21 answers · asked by Desert Rose 2 in Politics & Government ➔ Law Enforcement & Police
Well - interesting question - and answers. The answer is actually yes.... and no. Great huh? But really it depends on a bunch of factors. For instance which country? If the US, then which state? In Canada DUI is a federal (ie criminal) offence. In the US it falls under the jurasdiction of each state. You also must differentiate between a screening device and a breathalizer. For a screening device you do not have to be read youre rights because its the same as a road side sobriety test. If you fail - you will be read your rights and then given the breathalizer which gives an actual numeric BAC (blood alcohol content) reading which will then be used as evidence in court. In a nutshell, any time you are arrested or detained for the continuation of an investigation you must be advised of your rights. Miranda in the US and Charter rights and cautions in Canada. Courts in the past have ruled that since you cannot refuse to submit to a breathalizer without being charged for that refusal, then the breath demand constitutes a legal detention and you must in that case be advised of your rights. However - and this is important - the breath demand requires you to provide a sample of your breath into an approved screening device or breath analysis instrument FORTHWITH. This means that even if you demand council this will not delay or interfere with the administration of the breath test. If you pass - off you go. If you fail - call your lawyer and be honest with him/her telling them that you've done something stupid and got caught. Better yet DON'T DRINK AND DRIVE - you'll never have to worry about it then.
2006-11-26 13:16:21 · answer #1 · answered by kenneth t 1 · 0⤊ 0⤋
No, that is a common misconception. You have to look into case law for the definitions of key ingredients such as detention vs. custody and and interview vs. interrogation. The only time that the Miranda warning must be read is during a custodial interrogation. A DWI (DUI) arrest is almost completely an investigation until a determination of blood alcohol content is determined or decided to the level of probable cause so Miranda is not required unless the cop has placed you under arrest for the offense and then begins asking you questions related to it.
2006-11-26 14:22:18 · answer #2 · answered by jaybird512 2 · 0⤊ 0⤋
In Canada, taking someone into the station for a breath test is considered an arrest and rights to council must be read (here in Canada the caution against talking is a separate thing). If they are not read then the person can argue that their constitutional rights were violated and the charges can be dropped by the judge. If the person isn't charged I don't think it matters. If the arrest was unlawful (which has nothing to do with the reading of rights) then the police service can be sued.
2006-11-26 12:40:02 · answer #3 · answered by joeanonymous 6 · 0⤊ 0⤋
You watch way too much tv, lol.
Miranda only applies to custodial interrogations.
Your friend was pulled over most likely because of some sort of erratic driving. He was cuffed, hauled in and given a test. Asking "Have you been drinking?" is not considered custodial interrogation. No Miranda required.
Lets say your friend was driving erratically, was pulled over and the police saw blood on his clothes and a bloody knife next to him on the front seat. Earlier in the evening the police responded to a stabbing homicide. Your friend would have been placed under arrest and read his rights before questioning as required under Miranda.
2006-11-26 13:26:18 · answer #4 · answered by BoomChikkaBoom 6 · 1⤊ 0⤋
No. If he failed the Breathalyzer he would have been arrested. The officer only had probable cause to pull him over. Then as a pre-requisite to getting a driver's license he signed a consent form agreeing to take a breath test upon request. Otherwise he would have automatically lost his driving privileges for a period of 6 months ...depending on which state he was pulled over in. If caught in the act of a crime and the defendants testimony is not needed in order to convict then the defendant does not need to hear his rights read to him. Though if they need to question him about any specific crime than rights must be read according to law. Anything a defendant says before having his rights read to him is not admissible in a court of law.
Generally even if you are not in custody and you are being questioned about knowledge that you may have of a crime that you might have the detective will read you your rights in advance....therefore if you implicate yourself anything you say can be held against you.
2006-11-26 12:40:39 · answer #5 · answered by Anonymous · 0⤊ 0⤋
Contrary to popular belief, and what TV tells you, you do not have to be read your rights just because you got arrested. Here's the skinny on Miranda.
Miranda is based on a case law - Miranda v. Arizona - and established the necessity for the police to advise a person of their rights when they are both (1) in custody abd (2) being questioned. It applies across the country, though the exact wording does vary from place to place, state to state, etc.
The police do not have to advise you of these rights unless the two above conditions are met.
So, if the police question you and you are not in custody, the police do not have to give you your rights. If you are in custody and not being questioned, the police do not have to give you your rights.
Miranda also does not apply under certain special circumstances such as when public safety could be jeopardized if you are not immediately questioned (i.e., you may have discarded a loaded gun in a public place and finding it will ensure public safety). Also, the police do not have to advise you of your rights to complete non-investigative questioning such as name, birth date and identifying information needed to complete your booking and processing.
2006-11-26 14:01:49 · answer #6 · answered by James P 4 · 0⤊ 0⤋
There are two elements that have to be present in order for it to be mandatory that your rights be read to you. The first one is that you are in custody. The second on is that you are being questioned. If you are not being questioned and you are just in custody then your rights do not have to be read to you. So, in other words, unless the cop that arrested him asked him more questions than just his name, address and birthday then no his rights didn't have to be read to him.
2006-11-26 12:36:19 · answer #7 · answered by Sheila V 3 · 3⤊ 0⤋
I am only required to read you your rights if I am going to question you regarding an incestigation. I recommend you read the 4th amendment and then some case files from the Supreme Court to better understand this. Start with Miranda vs Arizona.
2006-11-26 12:34:39 · answer #8 · answered by spag 4 · 3⤊ 1⤋
Sounds like you watch too much tv. The answer is no. The police only read you your rights when they are going to question you.
2006-11-26 17:54:34 · answer #9 · answered by John71 3 · 0⤊ 0⤋
NO!!!
You watch too much freaking TV. Miranda rights are ONLY if the police question you about a crime.
Police can ask you your name and address, etc. for an arrest report. That is NOT being questioned!
2006-11-26 13:06:16 · answer #10 · answered by rjrmpk 6 · 1⤊ 1⤋