Can I fight a DUI receiving while being in a parked car? 2 Answers as of June 13, 2011

I was in a parking deck last night in Raleigh with a running car taking a nap before I drove home. So a cop comes bangs on my window a while later and asks me to get out of the car so I did. He ended up giving me only 2 field sobriety tests which were walking in a straight line and lifting my foot. He did not do a breathalyzer on field. He didn't read my Miranda rights when he arrested me. He stated them later at the station. He ended taking me in and I blew a .08. Is there any way to get this dropped?

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Clifford Clendenin & O'Hale, LLP
Clifford Clendenin & O'Hale, LLP | Locke T. Clifford
Yes, you can always fight the charge, but under North Carolina caselaw, "driving" means being in control of the car, even if it is not moving. If the car is running, and you are in the driver's seat, you are in control of it. The cop doesn't have to give you an alcosensor test (the handheld breath test) that is often done in the field. Miranda rights only apply when there is "in custody questioning," not an arrest.
Answer Applies to: North Carolina
Replied: 6/13/2011
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