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Know your rights part 3 MIranda Rights and San Diego DUI Investigations

by | Jan 6, 2014 | DUI Cases |

This is part three of four in a series of aids in knowing your rights.  It is important for citizens to know their rights.  As a San Diego DUI and Criminal defense attorney, I can tell you that most people do not use their rights when being investigated by the police.  Most of the people want to be compliant and non-confrontational with the officer as possible in a San Diego DUI or San Diego criminal defense case.  They feel if they are compliant the officer will let them go, usually because the person has never been in contact with police before when they are the ones being investigated.  It may be you…a friend…or a loved one as the focus of a San Diego DUI or criminal defense investigation. You have to know and use your rights and be proud (and not scared) to use them.

One other point to stress….people sometimes say I do not have to be afraid if I did not do anything wrong.  Well, it is not illegal to drink and drive.  You cannot be impaired or have a blood alcohol level greater than .08%. Well, when you are on I-5 and the you tell the officer about the two blue moons you had at happy hour before you headed home…trust me…you are under .08% and not likely impaired…but…you will be throughly interrogated as well as delayed getting home for at least an hour.  The officer will be eyeing you.  Every stumbled word (because you are scared).  Every delay in his instructions on an field sobriety test..the officer is chalking as you being guilty of a San Diego DUI.  If the machine gives a bad reading (for a myriad of reasons) and you are heading to jail, car towed, license suspended, and will have to fight to prove the machine was in error.

Miranda and police questioning–   In a San Diego DUI or San Diego criminal defense case it is important to always get a sense of where you are in the course of an investigation. I know people come into my office saying the police never read them their Miranda Rights.  I have attached the best case to discuss the issue.  Bottom line, the police can ask some questions in a San Diego DUI.  Take a look at the illustration.

You have to know your rights and use them….when being investigated for a San Diego DUI or criminal defenses case.  I have seen innocent people give statements and then remember something and change their story….only to have the officer mad and thinking they are lying.

The best thing to do is let the officer do their job during a San Diego DUI investigation…while you keep your rights and say the following:

This is the case that is thrown around most in San Diego DUI litigation when discussing whether Miranda was violated.

Berkemer v. McCarty 468 U.S. 420 (1984)

Here is the case above in full:

U.S. Supreme Court

BERKEMER> V. MCCARTY, 468 U.S. 420 (1984)

Berkemer v. McCarty
No. 83-710
Argued April 18, 1984
Decided July 2, 1984
468 U.S. 420

After observing respondent’s car weaving in and out of a highway lane, an officer of the Ohio State Highway Patrol forced respondent to stop and asked him to get out of the car. Upon noticing that respondent was having difficulty standing, the officer concluded that respondent would be charged with a traffic offense and would not be allowed to leave the scene, but respondent was not told that he would be taken into custody. When respondent could not perform a field sobriety test without falling, the officer asked him if he had been using intoxicants, and he replied that he had consumed two beers and had smoked marihuana a short time before. The officer then formally arrested respondent and drove him to a county jail, where a blood test failed to detect any alcohol in respondent’s blood. Questioning was then resumed, and respondent again made incriminating statements, including an admission that he was “barely” under the influence of alcohol. At no point during this sequence was respondent given the warnings prescribed by Miranda v. Arizona, 384 U. S. 436. Respondent was charged with the misdemeanor under Ohio law of operating a motor vehicle while under the influence of alcohol and/or drugs, and when the state court denied his motion to exclude the various incriminating statements on the asserted ground that their admission into evidence would violate the Fifth Amendment because respondent had not been informed of his constitutional rights prior to his interrogation, he pleaded “no contest,” and was convicted. After the conviction was affirmed on appeal by the Franklin County Court of Appeals and the Ohio Supreme Court denied review, respondent filed an action in Federal District Court for habeas corpus relief. The District Court dismissed the petition, but the Court of Appeals reversed, holding that Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated is a felony or a misdemeanor traffic offense, and that respondent’s post-arrest statements, at least, were inadmissible.


1. A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which

468 U. S. 428-435.

2. The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute “custodial interrogation” for the purposes of the Miranda rule. Although an ordinary traffic stop curtails the “freedom of action” of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. A traffic stop is usually brief, and the motorist expects that, while he may be given a citation, in the end, he most likely will be allowed to continue on his way. Moreover, the typical traffic stop is conducted in public, and the atmosphere surrounding it is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Mirandaand subsequent cases in which Miranda has been applied. However, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him “in custody” for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. In this case, the initial stop of respondent’s car, by itself, did not render him “in custody,” and respondent has failed to demonstrate that, at any time between the stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Although the arresting officer apparently decided as soon as respondent stepped out of his car that he would be taken into custody and charged with a traffic offense, the officer never communicated his intention to respondent. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the

468 U. S. 435-442.

3. A determination of whether the improper admission of respondent’s postarrest statements constituted “harmless error” will not be made by this Court for the cumulative reasons that (i) the issue was not presented to the Ohio courts or to the federal courts below, (ii) respondent’s admissions made at the scene of the traffic stop and the statements he made at the police station were not identical, and (iii) the procedural posture of the case makes the use of harmless error analysis especially difficult, because respondent, while preserving his objection to the denial of his pretrial motion to exclude the evidence, elected not to contest the prosecution’s case against him and thus has not yet had an opportunity to try to impeach the State’s evidence or to present evidence of his own. Pp. 468 U. S. 442-445.

716 F.2d 361, affirmed.

MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O’CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post,p. 468 U. S. 445.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges. Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case. Contact the Law Office of Mark Deniz now for a free case evaluation.

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