Can I fight a charge against me if I was not given a breathalyzer test when I got arrested? 8 Answers as of July 15, 2015

Can I fight a charge against me if I was not given a breathalyzer test when I got arrested and did not have my rights read to me? I was held for four hours and denied the right to call an attorney because I was in a car that was stopped for a DWI. When I was arrested for public intoxication, the arresting officer did not tell me what my charge was. He also did not read my Miranda Rights or give me a breathalyzer test.

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Lawrence Lewis
Lawrence Lewis | Lawrence Lewis, PC
Fight with attorney, or fight by yourself. You were arrested without a breathalyzer, but could not talk yourself out of the arrest.
Answer Applies to: Georgia
Replied: 7/15/2015
Law Office of Jeff Yeh
Law Office of Jeff Yeh | Jeff Yeh
Miranda only has to be read if there is post-arrest interrogation. Most cops are trained to get everything they need out of your mouth "prior" to cuffing you, so Miranda rarely applies. With that said, you should hire a lawyer and get this relatively minor charge dismissed. By yourself you're going to get a criminal record and lose your license for a year, and it isn't worth it.
Answer Applies to: California
Replied: 7/14/2015
Richard B. Jacobson & Associates, LLC | Richard B. Jacobson
Unfortunately you are likely to lose on each of those points. You do not have the right to a lawyer before the tests (breath, blood or urine) are given. Even without a breathalyzer (and I'm not sure if you mean an 'intoxilyzer' or not), if you were driving in an impaired fashion, and the impairment in driving was due to ingestion of alcohol or a controlled substance, they can charge you with drunk driving, which is a different offense from driving with a prohibited alcohol content in your blood. Miranda rights are not very helpful. If they do not read them to you, and if you are in custody at the time they question you, then all that happens is that they cannot use your statements against you in court. But usually they don't need to do so Find a skilled OWI lawyer. It almost always helps.
Answer Applies to: Wisconsin
Replied: 7/14/2015
Best DUI Lawyer
Best DUI Lawyer | Aniko Hoover
You can, and should fight every charge. If they did not offer you a breathalzyer did they take your blood? If not it seems like they don't have much evidence. If they have your blood- well... they have your blood which is even a better way to determine your Blood Alcohol Content (BAC) to see if it is over .08%. If you answered questions to the police after they arrested you then your rights should have been read to you. For the most part, police ask questions before arresting you and so they don't need to read you your rights.
Answer Applies to: California
Replied: 7/14/2015
The Law Offices of Harold L. Wallin | Harold L. Wallin
Yes, you can fight this charge. But it is strongly recommended that you retain an attorney to review the case, advise you and try the case in the event it goes to trial.
Answer Applies to: Illinois
Replied: 7/14/2015
    Ty Wilson Law | Ty Wilson
    You can refuse breathalyzer tests. If you are charged with public intoxication likely the officer is basing it upon you appearance, such as bloodshot eyes, unsteady or lack of balance and odor of alcohol. If there is any admission of drinking alcohol then the job is easier for the officers. Here is the code section. GA. Code 16-11-41 Public intoxication (Georgia Code (2014 Edition)) (a) A person who shall be and appear in an intoxicated condition in any public place or within the curtilage of any private residence not his own other than by invitation of the owner or lawful occupant, which condition is made manifest by boisterousness, by indecent condition or act, or by vulgar, profane, loud, or unbecoming language, is guilty of a misdemeanor. (b) This Code section shall not be construed to affect the powers delegated to counties or to municipal corporations to pass laws to punish drunkenness or disorderly conduct within their respective limits. HISTORY: Code 1933, 26-2607, enacted by Ga. L. 1968, p. 1249, 1. As you can see proving public intoxication only requires the officer testify of the appearance of intoxication based upon observation and training. You can always fight however, sometimes fighting to fight is not recommended. Your penalties potentially increase if you are fighting something you should not be fighting. See if the officer had a body camera video. Good luck.
    Answer Applies to: Georgia
    Replied: 7/14/2015
    Law Office of Jared C. Winter
    Law Office of Jared C. Winter | Jared C. Winter
    You can fight any charge, and you probably should. But know that breathalyzer tests are rarely given during a public intoxication investigation because, unlike DUI, the law does not state any particular blood alcohol content equals public intoxication. Also know that a failure to read Miranda rights does not mean a case gets thrown out.
    Answer Applies to: California
    Replied: 7/14/2015
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    Yes you can always fight the charges. The less evidence against you the better.
    Answer Applies to: California
    Replied: 7/14/2015
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