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Misconceptions Or False Defenses To A DUI Case In California


I Was Never Read My Miranda Rights; Can’t I Just Get My DUI Case Thrown Out?

Despite what the media portrays and what many people believe, officers are not always required to read the Miranda rights when arresting an individual. During a drunk driving DUI investigation, an officer is allowed to ask a person several questions in order to determine whether or not an arrest is warranted, and they are allowed to do this without first reading the Miranda rights. In order to show sufficient cause to arrest for impairment or for being at or over the limit, they will ask people whether or not they’ve been drinking, what they have been drinking, when they began drinking, when they stopped drinking, and whether or not they’ve eaten any food. Next, they will run them through a field sobriety test for balance, and conduct a preliminary alcohol screening test, which is a breath test that requires the individual to blow into a device once or twice.

If the breath test shows an alcohol concentration of 0.08 or more, then the officer will conduct an arrest, and this is the point at which the Miranda rights must be read prior to any further interrogative or probative questions about drunk driving. If officers continue to ask interrogative or probative questions to a suspect once that suspect has been arrested and is in custody, then a DUI defense attorney should be able to prevent the answers to those questions from being considered as evidence in a jury trial situation.

If incriminating information is offered voluntarily by a suspect who is in custody for drunk driving and the Miranda rights have not been read, it would not be considered a Miranda violation due to the fact that the information was offered voluntarily. This means that anything said in that context could indeed be used against the suspect.

Is It True That If The Arresting Officer Doesn’t Show Up For My Court Date, My DUI Case Will Be Dropped?

Unlike traffic court, wherein the absence of the officer will result in the ticket being thrown out, a DUI charge will not be dropped if the officer is not present at the hearing. In most cases, a person’s lawyer will show up to the first court date for them, and there is no requirement for the officer to be there. The lawyer will plead not guilty on behalf of their client and another court appearance will be scheduled. Unless subpoenaed to do so by the district or defense attorney, an arresting officer has no obligation to be present for a court hearing. If after receiving a subpoena to appear an officer fails to do so, then the case could be dismissed; however, if the officer has a good reason for not having been there, then the court hearing would likely be rescheduled.

I Did Not Give A Breath Or Blood Sample, So How Can I Possibly Be Convicted Of A DUI?

In California and most other states, there are two ways in which a person can be charged with DUI. The first way is by the officer charging impaired driving, which means not driving with the care and caution of a sober person; the second way is based on a per se violation of being at or below the legal limit of 0.08. If a person does not provide a breath or blood sample, then they cannot be charged with a per se violation, but they could still be charged with impaired driving. The charge of DUI based on impaired driving is based on the officer’s observations of how the individual was driving or whether or not they smelled the odor of alcohol on the individual’s breath. This charge could also be made based on the driver’s own admission, poor balance on a field sobriety test, the finding of receipts from a bar, bloodshot or watery eyes, or jerking of the eyes during the horizontal gaze nystagmus standardized field sobriety test.

Although it is rare, an officer will occasionally obtain a warrant from a judge to have a forced blood draw done on someone who refuses to provide a breath or blood sample. This warrant allows for a phlebotomist, nurse, EMT, or other qualified individuals to draw a sample of blood from the alleged drunk driver. If this happens and the blood sample shows a concentration of 0.08 or above, then the driver could be facing DUI charges and additional penalties for having refused the chemical test. Refusals have become increasingly common over the years, and people need to be really careful, particularly if they drive for a living.

For more information on Misconceptions/False Defenses In DUI Cases, a free case evaluation is your next best step. Get the information and legal answers you are seeking by calling (415) 523-7878 today.

Aaron Bortel

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