Is a blood alcohol level or breathalyzer test required to prove a charge of being drunk in public in Cali?

Question

My cousin was thrown down onto the cement by several police officers and then arrested for being drunk in public. He was not informed that he was being arrested, nor was he questioned- throwing him onto the cement was the first sign he was being arrested. No one ever read him him rights although he was "interviewed" by the Sargent of the team. The law states that reading someone their Miranda Rights is only required when being questioned about the present crime they may be convicted of but what is the difference between being "interviewed" and being "questioned?" Also, can this charge hold even if his alcohol level was never tested?

Answer 1

In California, no chemical test or BAC level is required to prove a charge of drunk in public under PC 647(f). The level of intoxication required for a person to be arrested under this section will vary dramatically from person to person. The officer's observations that the person arrested was too intoxicated to care for his safety, or the safety of others, will be sufficient evidence to prove the charge.

As to Miranda, the police must read Miranda rights to an arrested person who is being interrogated (questioned for the purpose of the investigation when the answers will be used against the suspect in court). Miranda rights DO NOT have to be read just because a person is arrested. TV made this up and people have just come to believe it as true. Also, Miranda does not apply to non-interrogative questioning. If the Sergeant of an arrest team was asking questions, you can bet those were administrative questions ("Are you hurt?" "Did my officers strike or hit you?" etc) and you can bet that interview was recorded. This kind of questioning has nothing to do with the case and does not have to be under Miranda.

In my 11 years in law enforcement I have never Mirandized and questioned a person arrested for public intoxication. My observations of that person serve to support the arrest. Besides, any defense attorney with more than a day of experience would quickly get a Miranda waiver and subsequent statement from such a suspect suppressed since the very nature of the arrest requires them to be so intoxicated that they can't care for themselves, let alone waive their constitutional rights.

Answer 2

Sounds like you have 2 issues here. To answer the question about the Breathalyzer...a person who is arrested for suspicion of drunk driving must first give the officer probable cause to detain the person. In other words, he/she must fail a Field Sobriety Test, which is a physical test used to determine if the person is capable of following instructions and if their coordination is in tact. If the person fails the FST, that gives the officer probable cause to detain the subject, but must attempt to test the suspect with an Alco-Sensor. If a breath test is refused, the police must take the suspect to the hospital for a blood test. A urine sample can also be obtained. All of these tests are documented in the report for court purposes. Most definitely, if the evidence based on the reports is weak, then the person would not be convicted.

Your second question, regarding interviewing and questioning: A person is questioned in the field to determine if in fact they should be interviewed further. An interview usually takes place in the police department. Being detained is not the same as being arrested, even if handcuffs are used.

Answer 3

I would think being thrown to the ground was being informed he was arrested. I'm sure there is a lot more to the story than what you or he is saying. People get confused, sometimes while intox, as to what their "rights" are and what is and isn't their business and end up in situations like this. Most criminals don't get their "rights" read to them. That only applies when you are being interogated for a crime, not being asked simple pedigree information for a BS drunk charge. Alcohol level is only measured in DWI cases becasue the law requires it. Odds are your cousin was drunk, obnoxious and paid the price. The cops testimony is all that is neccessary to the fact he was drunk. Most times the charges are dropped anyway. The purpose is to get the drunk idiot out of the way for the time being. What happens later is secondary. The cops could care less. They deal with the problem at hand and somehow, your cousin became the problem at hand. And yes he was. Contrary to popular belief, cops don't want to deal with BS arrests and obnoxious drunks. They actually do have better things to do...

Answer 4

In a word no. Also, if you try that crap with the judge, expect a lengthy prison stay instead of the more common slap on the wrist.

Basically, what is going to happen is the cops will show up at the trial with video evidence showing your cousin acting completely drunk off his ***, belligerent, refusing to obey reasonable orders given by the police and probably attacking them. Then, they will show them taking him down professionally using specific police tactics that everyone in the court (except your idiot cousin) knows are both allowed and standard operating procedure.

The judge is then going to evaluate the circumstances and the risk your cousin poses to the community. If he feels this is a one time thing and your cousin is basically very sorry and promises to never do it again, he'll get a slap on the wrist, If your cousin acts like an ***, arrogantly assumes he has a right to act that way and accuses the cops of being fascist pigs, then he can expect to spend the next 6 months as part of a chain gang, cleaning trash up off the side of the road. If your cousin has a criminal record and/or he actually attacked a policeman, he can expect to be given one to several years in prison.....that's REAL trouble by the way. Prison is a place where racist gangbanger psychopaths rape him every single night until his sentence is up.

This follows the typical paradigm as to how police and the courts look at people. You are either a nice normal citizen, an ****** or criminal scum. Expect fair treatment if you are normal. Expect to be treated like total crap and be given various punishments that are extremely uncomfortable if you act like an ****** (example....being thrown to the cement by several police officers). Heaven help you if they think you are a criminal.

Answer 5

Miranda rights are required prior to being questioned. As for his blood alcohol level, it really isn't required as long as he says no to the tests. However, then it is generally supposed under the law that you are guilty, and other sobriety tests would also be admissable.
Has he got any proof that he was abused by the policemen? Witnesses? Without them it would be hard to prove he didn't fall down from being drunk.

Answer 6

No.

On any alcohol charge, from DWI to Public Intox, the most important evidence will be the officer's observations of the suspect. That is how I get convictions on DWI cases where people refuse the breath test I offer them.

Answer 7

I agree observation and demeanor of the suspect as well as driving infractions are more then enough to convict for DWI. As far as your cousin, I am sure trhat he was less then cooperative and as far as throwing down , cops don't have to ask twice,if you are stupid enough to fight the cops then be prepared for what will result.