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Zoey, JD
Zoey, JD, Criminal Defense Lawyer
Category: US Law
Satisfied Customers: 28373
Experience:  Over 20 years of high volume criminal defense work,including all aspects of a case from arraignment to plea or trial.
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My son jus got a DUI, he was arrested but was never read his

Resolved Question:

My son jus got a DUI, he was arrested but was never read his rights. Why not? Did they arrest him correctly? He needs to show up in court, it is his first offense.
Submitted: 3 years ago.
Category: US Law
Expert:  Zoey, JD replied 3 years ago.
Hello,

My name is ***** ***** I am an experienced US criminal lawyer.

Non-lawyers frequently misunderstand Miranda warnings. Miranda has limited application in criminal cases. Miranda stands only for the fact that an arrested defendant does not have to agree to police interrogation about the incident he was arrested for. If the police did not interrogate your son about this case after he was placed in custody, then Miranda warnings are unnecessary.

If your son was interrogated post-arrest and his Miranda rights were violated, his case does not get dismissed. What would happen is that his lawyer could ask for a hearing on whether the police violated his Miranda rights. At such a hearing the prosecutor would put the officer on the stand who would try to show that he had an exception to the requirement so that he didn't need to Mirandize your son. Your son's attorney would then get to cross-examine the officer to try to show that Miranda warnings were necessary.

If the court determines that the police should have Mirandized your son, any statement your son made post arrest and/or any confession he signed would be suppressed, that is, it would be kept out of the trial. If the state wins the hearing, the statements your son made can come in as evidence against your son.







Customer: replied 3 years ago.
At what point was an "arrest" considered? After they hand cuffed him and drove him to police station or after he was finger printed....he asked at time of handcuffing to call his dad, and police denied him a phone call.... My son has learning disabilities and has always been taught to call us in anytime of need or question.
Expert:  Zoey, JD replied 3 years ago.
rCase law says that a defendant is under arrest from the moment when he knows he is not free to leave. So he was certainly under arrest at the moment he was cuffed, and he may have technically been under arrest even before that. You'd have to ask your son.

Unfortunately, there is no Constitutional right to a phone call. Sometimes a police officer will extend a courtesy and let an arrestee make one. Other times, for a number of reasons frequently haviing to do with staffing and security isssues, they will decline to let him do so.

I am sure this was frightening and confusing for your son. Arrests are. And I'm sure you are angry that the police didn't extend your son a basic courtesy. Unfortunately, however, everything you have told me sounds routine so far.

If you want to lodge a complaint against the arresting officer, you can certainly report him to his superiors. But I do not see a Constitutional violation in the facts that you have presented.





Customer: replied 3 years ago.
No complaint from me my son was not to drink then drive....thing is he passed sobriety test and then was told to do a breathalyzer. At that time he wanted a neutral party to witness. Of course police stopped him claiming he was driving 50 in a 35 zone.... Of course while talking to police they smelled he'd had a drink, thus the sobriety test. Legally if he declines breath test what happens? He didn't want to take it until his father was present, but without phone call they persisted and threatened him with fines for refusing test...... Is that legal?
Expert:  Zoey, JD replied 3 years ago.
Hi,

Every state has an implied consent law. That is, in order to be granted a driver's license, you automatically agree to abide by a police officer's determination that you be breath/blood/or urine tested. A refusal to test means an automatic year's suspension of your license, so yes, the police are required to tell him what he would face by turning down a request to test. It's not a threat. It's the law.

He has no right to a neutral third party witness. His right to an attorney doesn't even attach until he sees the judge at his arraignment.



Customer: replied 3 years ago.
Would a smart thing to do is plead no contest, or get an attorney and see what other options are available ..... I've had back surgery and jus returned to work, I really can't help financially w/hr. Rates of an attorney. My son is still in school.....Help
Expert:  Zoey, JD replied 3 years ago.
Sorry for the delay. I had to take my dogs out and get them fed.

If you cannot afford to get him a lawyer, he needs to plead NOT GUILTY, because that's the only plea that keeps his rights open. Then he can tell the judge that he does not have the funds to retain a lawyer and ask the judge to appoint him a public defender.

A plea of no contest results in a criminal conviction. The only difference between a no contest plea and a plea of guilty is that a no contest plea cannot be used as an admission against your son in civil court while a plea of guilty can. Since your son is not going to be sued for this incident, a no contest plea has no advantage.

With a not guilty plea, he gives himself the opportunity to get a lawyer and gives the lawyer time to try to cut a favorable deal on this case or to try the case if he thinks he can win it. i don't know the nature of your son's learning disabiity, but if he did refuse the test, the disability may provide him with the means to fight that and not face the suspension. I also don't know how old your son is, but if he's under 21, penalties can be strict in your state. If there's a chance that he can come out of this without a criminal record it will likely be because a lawyer was able to negotiate something favorable for him by virtue of his age and disabiilty.





Customer: replied 3 years ago.
Sorry, I fell asleep in Hawaii it was 2:20 am. Ok I'll have him plead not guilty. Is it his legal right to have a public defender or can the judge deny him one?
Expert:  Zoey, JD replied 3 years ago.
No apology necessary.

Public defenders are only for people who cannot afford a lawyer. If he's unemployed, he should be eligible. In Hawaii, he has to fill out a form with the public defender's office and let them determine his eligibiity from his financial disclosure. (see link) If he is ineligible and you cannot pay for a lawyer for him, then he'd have to go forward on his own.

Customer: replied 3 years ago.
All the info you have shared with me has been so appreciated. I thank you for ALL of it, and if there is anything I haven't asked and maybe I should know please share it with me.
Expert:  Zoey, JD replied 3 years ago.
I think you have the basics, and if a situation arises you can always request me in a new question by puttng "For Zoey" as the first two words of the question. That will make it appear in the subject heading of the question so I'll be able to spot it and know it is for me.

Good luck to your son!

Customer: replied 3 years ago.
Thank you, ***** ***** truly AWESOME!!! Have a great weekend and hugg your doggies 4me (I have a ridgeback n she's my baby).
Aloha and much Mahalo ***** ***** and I'm sure I'll be looking for you again in the days to follow :)
Expert:  Zoey, JD replied 3 years ago.
I've got three English toy spaniels. They keep me plenty busy, but I do have time to hug them -- lots.

Enjoy the weekend (and the ridgeback)!

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