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Sunday, November 8, 2009

Arrested for DWI, What about My Miranda Rights?

Most people are familiar with the term Miranda Rights. We have all seen TV series that show someone being arrested and led to the car with the officer saying "You have the right to remain silent, anything you say can and will be used against you." A common question a DWI defense lawyer hears from those arrested for DWI in North Carolina is "I was arrested for DWI, what about my Miranda Rights?"

For Miranda to apply, two conditions must be met. You must be in custody and the police must be asking you a question that it designed to elicit an incriminating response. A person is in custody when a reasonable person no longer feels free to leave. If in handcuffs, you can pretty much assume you are in custody. However, if you have been pulled over and the police start asking you questions about whether you have been drinking, the State will argue that only an investigation is taking place. An investigation? You have been pulled over by a police car with flashing lights and a police officer is asking you to perform field sobriety tests and this is only viewed as an investigation and not designed to convict you of a crime? Seems a bit far fetched, but Courts have held that this is an investigation only.  Police purposely design their DWI/DUI investigations in such a way to ask you all these questions before you are placed in custody. You are under no obligation to answer their questions and help build a case against you. If a police officer continues to ask questions after you are 'in custody', then you are entitled to your Miranda Rights. Custodial status requiring Miranda warnings can be factually triggered in a variety of ways, not just being handcuffed.

Many times experienced defense attorneys successfully have a person's statement to police and the performance on the field sobriety tests excluded from evidence. It is important to have your case reviewed to ensure your Miranda Rights have not been violated. Even if your Miranda Rights were not violated during your DWI/DUI arrest in North Carolina, there are other ways an attorney can exclude answers given to a police officer during the investigation, the performance of field sobriety tests, and breath/blood results. I recently had a case dismissed not because of Miranda violation, but rather lack of probable cause to arrest. More on this later...

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posted by Carilyn Ibsen at


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