I did not have Miranda rights read to me and was not given a Breathalyzer test when arrested in California. Can I fight my charge? 13 Answers as of February 08, 2011

The cops stopped my friend for a DUI and I got charged with public intoxication because I was the passenger. During the whole process, I was not told why I was being arrested, and my rights were not read to me. I had been held for over 4 hours in jail and did not get my phone call.

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Tomas M. Flores, Esq.
Tomas M. Flores, Esq. | Tomas M. Flores
Miranda is not required when blowing into an alcohol testing device because no statement is being elicited. Breath is not a statement.
Answer Applies to: California
Replied: 2/8/2011
The Law Office of Harry E. Hudson, Jr.
The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
Do you have to be given a blood alcohol test of some type for the allegation of being so intoxicated that you cannot take care of your self (i.e. you must be more than under the influence) . NO. Cops comments about how you looked and acted can be enough. Do you have to be told why you are being arrested. Not if it is pretty obvious. Miranda not needed if cops do not take a statement from you while you are in a custodial situation. Generally, roadside or streetside questioning for DUI and public intoxication are not within the ambit of Miranda. While normally the violation of another person's constitutional rights cannot be asserted by a third person, the detention of the driver here is also a detention of you. If it it was illegal, you may be able to suppress the evidence.
Answer Applies to: California
Replied: 2/4/2011
Law Office of Thomas F. Mueller
Law Office of Thomas F. Mueller | Thomas Mueller
Contrary to popular opinion you do not have a right to Miranda Warnings unless the police are questioning you. However a good lawyer can get your case dismissed by proper legal manuevering. We handle many of these cases. For more info or to retain our firm call.
Answer Applies to: California
Replied: 2/4/2011
Law Offices of Ryan P. Murphy
Law Offices of Ryan P. Murphy | Ryan P. Murphy
Usually, a drunk in public can get dismissed with a certain number of AA Meetings. If this is your first time dealing with the criminal courts, and this is your first criminal offense, go to 5 AA Meetings a week and provide proof to the court. Your "voluntary" efforts are always appreciated by the court. Should you have any questions or concerns, feel free to contact my office at your earliest convenience.
Answer Applies to: California
Replied: 2/3/2011
The Law Office of Stacey Wolcott
The Law Office of Stacey Wolcott | Stacey Wolcott
I understand your concerns and these are concerns I typically hear from clients. In CA the law does not require you to be read your Miranda rights unless the police have you in custody and they wish to interrogate you and illicit incriminating statements from you. It does not sound like you were interrogated in this case. Furthermore, for a public intoxication charge there is no requirement that you be provided any type of chemical test, the observations of the officer usually tend to be enough for this charge. In order for you to be convicted of public intoxication it must be shown that you were a danger to yourself or others and that you could not care for yourself, so it sounds just based upon your brief explanation that there may be a problem here. Please feel free to give my office a call to schedule a free consultation where I would be happy to discuss any other issues or concerns you might have.
Answer Applies to: California
Replied: 2/3/2011
    Law Offices of Lawrence Wolf
    Law Offices of Lawrence Wolf | Lawrence Wolf
    Your case will be dismissed Tell your friend charged with drunk driving to give me a call.
    Answer Applies to: California
    Replied: 2/2/2011
    Law Offices of Juan Dotson
    Law Offices of Juan Dotson | Juan Dotson
    Yes, you can fight charge. You may want an attorney to contact the prosecution's office to see if they will file charges against you. The police do not have to read you Miranda rights if they are not asking you any questions designed to elicit an incriminating response. So as long as they didn't ask you anything about alcohol, they don't have to read you your rights. Your friend should contact (1) the DMV to schedule an admin hearing and (2) an attorney to help defend the charges.
    Answer Applies to: California
    Replied: 2/2/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    Miranda only keeps out statements made during a detention. Any other info can be used in court. In your case you should get it reduced to 415 disturbing the peace.
    Answer Applies to: California
    Replied: 2/2/2011
    Nelson & Lawless
    Nelson & Lawless | Terry Nelson
    There is no requirement to read you your rights at arrest, unless they are seeking a confession from you during questioning and interrogation. They didnt need a confession from you for an observable intoxicated condition.

    Nor do they have to give a non-driver a blood test; the officers report and testimony about observed intoxicated condition is the evidence normally introduced for Public Intoxication.

    Nor is it any defense that you didnt get a phone call during a short book, cite and release trip to jail. Of course you can fight it. When arrested and charged with any crime, the proper questions are, can you be convicted, and what can you do? Defend the charges. Go to court, enter a not guilty plea, set up and attend the court hearing[s] and trial date[s]. File evidence suppression or other motions as applicable. Raise all the available defenses with whatever admissible and credible witnesses, evidence and facts are available for legal arguments for motions, plea-bargaining, or at trial. Go to trial if it can't be resolved with motions or a plea bargain. There is no magic wand to wave and make it all disappear. If you don't know how to do these things, then hire an attorney that does, who will try to get a dismissal, diversion, reduction or other decent outcome through plea bargain for you, or take it to trial. If serious about doing so, and if this is in SoCal courts, feel free to contact me. Ill be happy to help you use whatever defenses you may have. If you can't afford private counsel, you can apply for the Public Defender.

    Unless you have priors, for a simple Public Intox, you can reasonably expect to be offered a plea bargain that includes fines, suspended jail time and probation, AA meetings maybe, but not likely any substantial jail time.
    Answer Applies to: California
    Replied: 2/2/2011
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    You should fight this charge. However, they do not have to read you your rights or give you a pas test. Since they did not do these things, you have a better defense but no guarantees.
    Answer Applies to: California
    Replied: 2/2/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Absolutely. Public Intoxication is a relative minor charge, and you were inside a car, so technically it wasn't even in "public." An experienced defense attorney may be able to get you a dismissal or at least a reduction in charge to an infraction.
    Answer Applies to: California
    Replied: 2/2/2011
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