I was arrested about 6 weeks ago after a traffic accident that was my fault. The cop was convinced that I was drunk or high. I told him that I must have hit my head. He gave me about 5 min to gather my thoughts but i couldn't get my head together. I failed the field sobriety test and was not given a breathalyzer as i requested. He arrested me so he could take me in to use the more accurate breathalyzer. Of course I blew a 0.0. While I was waiting for him to let me go I realized he never read me my rights. What could I have done if this happens again?
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Being arrested
- Thread starter 1hogfan83
- Start date
Dixie Gunsmithing
Moderator Emeritus
Nothing much, now, since you were let go, but they should have taken you to an ER. If they had booked you, then you could have used that in your defense at the time of trial, and anything that was said couldn't be used against you. That is, unless the new ruling on the 5th Amendment will change it somehow.
Spats McGee
Administrator
I'll still have to digest the new SCOTUS ruling on the A5, but as of 6 weeks ago, and in conjunction with Arkansas law:
1) You're only entitled to Miranda warnings if there's a custodial interrogation. That means that you have to: (a) be in custody; and (b) be interrogated; before you're entitled to receive the Miranda warnings. There are some additional vagaries that go with this.
2) You're not entitled to counsel during the Standard Field Sobriety Test, or the BAC (Datamaster or Intoxilyzer) testing.
3) The Standard Field Sobriety Test is not actually required for either an arrest or a charge of DWI.
4) If you're arrested, the "implied consent" law kicks in, and you have to take a test of the officer's choosing (breath, blood or urine), after which you may request a test of your own choosing, at your own expense.
In short, nothing. Based on the facts as presented, you weren't entitled to Miranda warnings, and none were given.
1) You're only entitled to Miranda warnings if there's a custodial interrogation. That means that you have to: (a) be in custody; and (b) be interrogated; before you're entitled to receive the Miranda warnings. There are some additional vagaries that go with this.
2) You're not entitled to counsel during the Standard Field Sobriety Test, or the BAC (Datamaster or Intoxilyzer) testing.
3) The Standard Field Sobriety Test is not actually required for either an arrest or a charge of DWI.
4) If you're arrested, the "implied consent" law kicks in, and you have to take a test of the officer's choosing (breath, blood or urine), after which you may request a test of your own choosing, at your own expense.
In short, nothing. Based on the facts as presented, you weren't entitled to Miranda warnings, and none were given.
Demand for a Lawyer to be present & then shut up untill he is brought to you. These are both rights you have, use them.
Don't get into an argument or worse with the officer, thats a seperate issue.
Many, many convictions are caused by the alleged perp saying something that is used against them later.
Don't get into an argument or worse with the officer, thats a seperate issue.
Many, many convictions are caused by the alleged perp saying something that is used against them later.
Destructo6
New member
What was, "incompetent" or "unprofessional" about the officer's actions?
Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action.
What more could he have done? Appears textbook to me.
Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action.
What more could he have done? Appears textbook to me.
stumper1300
New member
He should have taken him to the hospital iff he hAD a head injury.
What was, "incompetent" or "unprofessional" about the officer's actions?
Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action.
- He didn't advise him of his rights = unprofessional
which would of ruined a court case and is not along with his training = incompetent.
- He could of called a car in that did have a breathalyzer or at least smelled breath.
-The way he just hailed the OP off makes it seem like he has little respect for other members of his community so it would be good to have this on record to show a pattern if it keeps happening and needs to be further investigating.
Frank Ettin
Administrator
Nope. The circumstances as described did not under the law require the giving of Miranda rights. See post 3.deepcreek said:- He didn't advise him of his rights = unprofessional
which would of ruined a court case and is not along with his training = incompetent....
Evan Thomas
Inactive
This. From the OP's description, he probably had a concussion. Calling paramedics and getting him to a hospital wouldn't have prevented testing his BA.He should have taken him to the hospital iff he hAD a head injury.
Evan Thomas
Inactive
Exactly. If he'd had something like a subdural hematoma and died while in custody, that would have made for a tasty lawsuit -- for his heirs.
Spats McGee
Administrator
I will agree that if the OP informed the officer that he'd hit his head (which he said he did), at the very least, the officer should have offered medical assistance. With that said, the question of a lawsuit against the officer is at best an iffy one, on the facts presented.
Frank Ettin
Administrator
What Frank Ettin said.
In fairness, Spats McGee said it first. Here I'm just riding his coattails.
maestro pistolero
New member
He could've taken him straight to the ER where they could have drawn blood and gotten their sobriety test, while addressing the potential medical concerns. This addresses everything, including potential liability for taking someone in custody who was injured thereby depriving them of medical treatment.
If I understand this right, he was not arrested, just detained pending further investigation. Thus the reason for no rights being read. Had he been drinking he would have been arrested and read his rights. Am I correct here.
quote-1hogfan83
Being arrested
I was arrested about 6 weeks ago
He arrested me so he could take me in
He says he was arrested.
@deepcreek - sometimes that's actually a very contentious issue. From what he described, I'm not sure I'd call it an arrest per se, though if he was taken to the police station he was certainly in custody. Doesn't sound like he was fingerprinted and/or booked, however, so from a legal perspective he may not have been arrested.
Spats McGee
Administrator
What the police could have done is not necessarily the same as what they were legally required to do. Further, Miranda rights do not have to be read on arrest. Never have been. They've only been required when there's a custodial interrogation.