Should I have been read my Miranda Rights during my DWI Arrest?
Many people are shocked when an officer arrests a person without reading Miranda rights and wonder about the legal impact of the failure to advise Miranda rights. Generally, a suspect’s oral or written statements that are made after arrest and in response to an officer’s question, are protected by Miranda (i.e. if no rights advisement then the statement itself would be potentially inadmissible in evidence).
In North Carolina, officers frequently do not read Miranda rights at the time of a DWI arrest and often a suspect is never advised of Miranda rights during the entire encounter with police.
In the context of a DWI arrest, the lack of Miranda warnings is not likely to result in a dismissal of charges. Most of the time statements made by a DWI suspect after arrest are not particularly important in the State’s prosecution. The suspect’s statements and field sobriety tests prior to arrest combined with a blood or breath alcohol result may be enough for the State to proceed to trial on a DWI charge.
If there is a question about who was driving the vehicle or whether the suspect has consumed alcohol since driving, then the proper advisement of Miranda rights may be important for questions asked by police after a DWI arrest.
Talking to an experienced North Carolina DWI attorney can help you determine whether the lack of Miranda advisement can help in attacking your case.
Do I have the right to speak to an attorney before providing a blood or urine sample?
Yes. In North Carolina, an individual who is being compelled to implied consent testing has the right to consult with an attorney before being tested.
This right however does not allow a delay in testing. Once an individual has been notified that they have the right to speak to an attorney, the individual has 30 minutes to find and contact an attorney.
If I blow under the legal limit, can they still arrest me?
Although the answer to this question seems like it should be a resounding no, that is not the case.
In North Carolina, an individual can still be charged with a DWI, even though they were below the legal limit. This occurs where a police officer has observed an individual driving in a manner that indicates they are impaired. This means that even though they weren’t legally impaired, they were not capable, in the officer’s opinion, of maintaining their physical and mental capacities enough to drive in a normal manner.
Since this type of arrest relies on the subjective opinion of the arresting officer, there is generally a better chance of fighting the charge.
Learn more about DWI misconceptions here.
Can I be arrested for a DWI even though the vehicle was not moving and in park?
Yes, a person can be arrested for a DWI in a non-moving vehicle that is in park.
Under North Carolina law, a person can be charged for a DWI as long as a vehicle is under their control. This means that regardless of whether the car was moving or not, the person could still be considered in control of the vehicle if they were in the driver’s seat with the motor on.
Learn more about DWI misconceptions here.
What if I was stopped for another traffic infraction, but got charged with a DWI?
As long as the reason for pulling you over is legitimate, an officer can conduct a DWI investigation if he has reasonable suspicion about the driver’s impairment.
Can I get a DWI on a bike?
Yes, an individual can receive a DWI while riding a bike. Under the DWI statute, one the elements only states that a person must have been “driving a vehicle.”
Under NC law, a bike is considered a vehicle for DWI purposes.
Learn more about DWI misconceptions here
What tests can the police officer make me undergo?
If you have been stopped by a police officer for suspicion of Driving While Impaired (DWI), you may be asked to undergo two types of tests: field sobriety tests (FST) and chemical analysis tests.
Field sobriety tests are tests that an officer can ask you to perform that display how well you have control of your physical and mental capacities. The more of these tests that you fail, the higher the probability that you are impaired, in the officer’s opinion. Additionally, these tests can be used as evidence at trial to prove your impairment.
There are two types of FSTs: Standardized Field Sobriety Tests and Non-Standardized Field Sobriety Tests.
The three Standardized Field Sobriety Tests are:
- The Walk-and-Turn Test;
- The One-Leg-Stand Test; and
- The Horizontal Gaze Nystagmus Test.
The Non-Standardized Tests include:
- The Finger Dexterity Test;
- The Alphabet Test; and
- The Romberg Balance Test.
For these tests to be effective, police officers must strictly comply with the required procedures when performing the Standardized Field Sobriety Tests. If your attorney can show that the officer did not strictly comply, doubt can be shown as to your alleged impairment, making it more difficult for the state to prove your guilt at trial.
Chemical analysis tests can be blowing into a breathalyzer, having blood drawn, or providing a urine sample. In North Carolina, as a requirement of obtaining a driver’s license, you have given implied consent for these tests.
Learn more about attacking the Horizontal Gaze Nystagmus Test and the Walk-and-Turn Sobriety Test.
What evidence does the police officer need to arrest me for a DWI?
For a police officer to arrest an individual for Driving While Impaired (DWI), the officer must consider the following three types of evidence:
- Observations of behavior in general;
- Utilization of field sobriety tests; and
- Chemical analysis tests in the form of breath, blood, or urine.
When considering these three forms of evidence, the officer must decide whether looking at the totality of the circumstances gives him enough probable or reasonable cause to arrest the individual. It is important to note that probable or reasonable cause is a much lower standard of proof then what will be required to show guilt in a trial, which is proof beyond a reasonable doubt.
Can the police use random DWI checkpoints in North Carolina?
Yes. The Supreme Court has said that the use of random DWI checkpoints is valid under the Constitution.
The Supreme Court justified this by looking at the amount of crashes and fatalities that result from impaired driving. Since there is a substantial government interest in preventing and reducing these problems, the police were granted the power to set up random DWI checkpoints.