Being arrested

1hogfan83 · June 19, 2013, 06:54 AM

I was arrested about 6 weeks ago after a traffic accident that was my fault. The cop was convinced that I was drunk or high. I told him that I must have hit my head. He gave me about 5 min to gather my thoughts but i couldn't get my head together. I failed the field sobriety test and was not given a breathalyzer as i requested. He arrested me so he could take me in to use the more accurate breathalyzer. Of course I blew a 0.0. While I was waiting for him to let me go I realized he never read me my rights. What could I have done if this happens again?

Dixie Gunsmithing · June 19, 2013, 06:59 AM

Nothing much, now, since you were let go, but they should have taken you to an ER. If they had booked you, then you could have used that in your defense at the time of trial, and anything that was said couldn't be used against you. That is, unless the new ruling on the 5th Amendment will change it somehow.

**Spats McGee** · June 19, 2013, 08:18 AM

I'll still have to digest the new SCOTUS ruling on the A5, but as of 6 weeks ago, and in conjunction with Arkansas law:
1) You're only entitled to Miranda warnings if there's a custodial interrogation. That means that you have to: (a) be in custody; and (b) be interrogated; before you're entitled to receive the Miranda warnings. There are some additional vagaries that go with this.
2) You're not entitled to counsel during the Standard Field Sobriety Test, or the BAC (Datamaster or Intoxilyzer) testing.
3) The Standard Field Sobriety Test is not actually required for either an arrest or a charge of DWI.
4) If you're arrested, the "implied consent" law kicks in, and you have to take a test of the officer's choosing (breath, blood or urine), after which you may request a test of your own choosing, at your own expense.

In short, nothing. Based on the facts as presented, you weren't entitled to Miranda warnings, and none were given.

wogpotter · June 19, 2013, 08:21 AM

Demand for a Lawyer to be present & then shut up untill he is brought to you. These are both rights you have, use them.

Don't get into an argument or worse with the officer, thats a seperate issue.

Many, many convictions are caused by the alleged perp saying something that is used against them later.

deepcreek · June 19, 2013, 09:53 AM

You can file a "internal investigation" so this officer gets reviewed and investigated for his unprofessional and incompetent actions.

Destructo6 · June 19, 2013, 10:00 AM

What was, "incompetent" or "unprofessional" about the officer's actions?

Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action.

What more could he have done? Appears textbook to me.

stumper1300 · June 19, 2013, 10:21 AM

He should have taken him to the hospital iff he hAD a head injury.

deepcreek · June 19, 2013, 10:22 AM

Quote:

What was, "incompetent" or "unprofessional" about the officer's actions?

Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action.

- He didn't advise him of his rights = unprofessional
which would of ruined a court case and is not along with his training = incompetent.

- He could of called a car in that did have a breathalyzer or at least smelled breath.

-The way he just hailed the OP off makes it seem like he has little respect for other members of his community so it would be good to have this on record to show a pattern if it keeps happening and needs to be further investigating.

**Frank Ettin** · June 19, 2013, 10:31 AM

Quote:

Originally Posted by deepcreek

- He didn't advise him of his rights = unprofessional
which would of ruined a court case and is not along with his training = incompetent....

Nope. The circumstances as described did not under the law require the giving of Miranda rights. See post 3.

Evan Thomas · June 19, 2013, 10:40 AM

Quote:

He should have taken him to the hospital iff he hAD a head injury.

This. From the OP's description, he probably had a concussion. Calling paramedics and getting him to a hospital wouldn't have prevented testing his BA.

csmsss · June 19, 2013, 10:50 AM

Presumably the police officer didn't believe the OP sustained a head injury - but police officers are not adequately trained to make such observations.

Evan Thomas · June 19, 2013, 10:56 AM

Exactly. If he'd had something like a subdural hematoma and died while in custody, that would have made for a tasty lawsuit -- for his heirs.

**Spats McGee** · June 19, 2013, 11:06 AM

I will agree that if the OP informed the officer that he'd hit his head (which he said he did), at the very least, the officer should have offered medical assistance. With that said, the question of a lawsuit against the officer is at best an iffy one, on the facts presented.

Glenn Dee · June 19, 2013, 01:16 PM

What Frank Ettin said.

**Frank Ettin** · June 19, 2013, 01:19 PM

Quote:

Originally Posted by Glenn Dee

What Frank Ettin said.

In fairness, Spats McGee said it first. Here I'm just riding his coattails.

maestro pistolero · June 19, 2013, 02:35 PM

He could've taken him straight to the ER where they could have drawn blood and gotten their sobriety test, while addressing the potential medical concerns. This addresses everything, including potential liability for taking someone in custody who was injured thereby depriving them of medical treatment.

jmr40 · June 19, 2013, 02:38 PM

If I understand this right, he was not arrested, just detained pending further investigation. Thus the reason for no rights being read. Had he been drinking he would have been arrested and read his rights. Am I correct here.

deepcreek · June 19, 2013, 04:20 PM

Quote:

If I understand this right, he was not arrested, just detained pending further investigation. Thus the reason for no rights being read. Had he been drinking he would have been arrested and read his rights. Am I correct here.

Quote:

quote-1hogfan83
Being arrested

I was arrested about 6 weeks ago

He arrested me so he could take me in

He says he was arrested.

csmsss · June 19, 2013, 05:44 PM

@deepcreek - sometimes that's actually a very contentious issue. From what he described, I'm not sure I'd call it an arrest per se, though if he was taken to the police station he was certainly in custody. Doesn't sound like he was fingerprinted and/or booked, however, so from a legal perspective he may not have been arrested.

**Spats McGee** · June 19, 2013, 05:55 PM

What the police could have done is not necessarily the same as what they were legally required to do. Further, Miranda rights do not have to be read on arrest. Never have been. They've only been required when there's a custodial interrogation.

csmsss · June 19, 2013, 06:02 PM

And let's be specific about what we're talking about here. A Miranda violation is not a get out of jail free card. Even if the judge/appellate court finds that your 5A rights were violated because you weren't properly Mirandized, it does not mean you necessarily walk away. At the trial level, it simply means that the prosecutor cannot use or refer to any statements you may have made after the moment when you were supposed to have been Mirandized and were not - and the appellate court may, of course, order a new trial and specify that such statements be excluded from presentation in the retrial.

But it's rare that a Miranda violation will inherently result in a prejudicial dismissal (prejudicial dismissal means the case cannot be retried).

csmsss · June 19, 2013, 06:05 PM

@Spats - if memory serves, most PD's started doing the early Miranda readings to make it easier to conduct officer training. It can be quite murky indeed for the officer conducting an interview to pick that specific point at which a witness/interviewee becomes a custodial suspect/interrogatee. Much easier to tell them to Mirandize anyone they speak with who they think might be involved with the crime being investigated, methinks.

Hawkeye146 · June 19, 2013, 08:18 PM

First off he was not arrested, only detained for further investigation. After the investigation found he was not intoxicated he was let go. No questions asked pertaining to the DUI then no Miranda. What the officer SHOULD have done is as soon as he made the determination he was making an investigation he should have read him Miranda, makes trial easy for officer and DA. If the officer asked any questions pertaining to the DUI and did not give Miranda then any statements made would be inadmissible.

Patriot86 · June 19, 2013, 08:21 PM

Quote:

He could've taken him straight to the ER where they could have drawn blood and gotten their sobriety test, while addressing the potential medical concerns. This addresses everything, including potential liability for taking someone in custody who was injured thereby depriving them of medical treatment.

This

IMO the officer not only put the OP in danger by not calling an ambo and at least giving him the choice of going to the ER but also opened himself and his department up to liability. If the OP had say had a blood clot from the crash and while in detention and he died, then the family could have filed a wrongful death suit and they probably would have gotten a big pay out.

I don't know how they do things where the OP lives but my wife was in a car accident last year, BEFORE the field sobriety test (given to both drivers involved) the EMS people looked at both drivers to make sure there was no evident health issue.

I just find it unconscionable that the OP said he had hit his head and was not given the choice to be taken to the ER.

Beyond that though you can always ask for a lawyer if they put the cuffs on you and wish to take you to another location for whatever reason.

KyJim · June 19, 2013, 09:23 PM

One further point on the Miranda warning --- assuming one is required, violation does not mean the charge is dismissed. It means suppression of the statement made in violation or any resulting "fruit of the poisonous tree."

I don't know about Arkansas's implied consent law but, in my state, if you don't consent to the test, your license is automatically suspended and the officer may still cite/arrest you for DUI based on his or her observations. You can take it to trial but then the fact finder is going to assume you refused because you were drunk (real life here, not the "presumed innocent" instruction given to jurors).

June 19, 2013, 06:54 AM	#1
1hogfan83 Senior Member Join Date: August 12, 2011 Location: Fayetteville AR Posts: 420	Being arrested I was arrested about 6 weeks ago after a traffic accident that was my fault. The cop was convinced that I was drunk or high. I told him that I must have hit my head. He gave me about 5 min to gather my thoughts but i couldn't get my head together. I failed the field sobriety test and was not given a breathalyzer as i requested. He arrested me so he could take me in to use the more accurate breathalyzer. Of course I blew a 0.0. While I was waiting for him to let me go I realized he never read me my rights. What could I have done if this happens again? __________________ You believe that there is one God. Good! Even the demons believe—and shudder. James 2:19 "I do not fear the man that practices ten thousand kicks one time, I fear the man that practices one kick ten thousand times." Bruce Lee

June 19, 2013, 08:18 AM	#3
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	I'll still have to digest the new SCOTUS ruling on the A5, but as of 6 weeks ago, and in conjunction with Arkansas law: 1) You're only entitled to Miranda warnings if there's a custodial interrogation. That means that you have to: (a) be in custody; and (b) be interrogated; before you're entitled to receive the Miranda warnings. There are some additional vagaries that go with this. 2) You're not entitled to counsel during the Standard Field Sobriety Test, or the BAC (Datamaster or Intoxilyzer) testing. 3) The Standard Field Sobriety Test is not actually required for either an arrest or a charge of DWI. 4) If you're arrested, the "implied consent" law kicks in, and you have to take a test of the officer's choosing (breath, blood or urine), after which you may request a test of your own choosing, at your own expense. In short, nothing. Based on the facts as presented, you weren't entitled to Miranda warnings, and none were given. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

June 19, 2013, 08:21 AM	#4
wogpotter Senior Member Join Date: September 27, 2004 Posts: 4,811	Demand for a Lawyer to be present & then shut up untill he is brought to you. These are both rights you have, use them. Don't get into an argument or worse with the officer, thats a seperate issue. Many, many convictions are caused by the alleged perp saying something that is used against them later. __________________ Allan Quatermain: “Automatic rifles. Who in God's name has automatic rifles”? Elderly Hunter: “That's dashed unsporting. Probably Belgium.”

June 19, 2013, 10:00 AM	#6
Destructo6 Senior Member Join Date: March 18, 1999 Location: Nogales, AZ USA Posts: 4,000	What was, "incompetent" or "unprofessional" about the officer's actions? Sounds to me that he followed due dilligence throughout his investigation and once discovered that DWI had not, in fact, occured, released the individual and took no further action. What more could he have done? Appears textbook to me. __________________ God gave you a soul. Your parents, a body. Your country, a rifle. Keep all of them clean.

June 19, 2013, 10:56 AM	#12
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	Exactly. If he'd had something like a subdural hematoma and died while in custody, that would have made for a tasty lawsuit -- for his heirs. __________________ Never let anything mechanical know you're in a hurry.

June 19, 2013, 06:59 AM	#2
Dixie Gunsmithing Moderator Emeritus Join Date: April 27, 2013 Location: Ohio Posts: 1,923	Nothing much, now, since you were let go, but they should have taken you to an ER. If they had booked you, then you could have used that in your defense at the time of trial, and anything that was said couldn't be used against you. That is, unless the new ruling on the 5th Amendment will change it somehow.

June 19, 2013, 09:53 AM	#5
deepcreek Senior Member Join Date: March 30, 2013 Location: Colorado Posts: 320	You can file a "internal investigation" so this officer gets reviewed and investigated for his unprofessional and incompetent actions.

June 19, 2013, 10:21 AM	#7
stumper1300 Member Join Date: June 18, 2012 Posts: 55	He should have taken him to the hospital iff he hAD a head injury.

June 19, 2013, 10:50 AM	#11
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	Presumably the police officer didn't believe the OP sustained a head injury - but police officers are not adequately trained to make such observations.

June 19, 2013, 11:06 AM	#13
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	I will agree that if the OP informed the officer that he'd hit his head (which he said he did), at the very least, the officer should have offered medical assistance. With that said, the question of a lawsuit against the officer is at best an iffy one, on the facts presented. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

June 19, 2013, 01:16 PM	#14
Glenn Dee Senior Member Join Date: September 9, 2009 Location: South Florida Posts: 1,560	What Frank Ettin said.

June 19, 2013, 02:35 PM	#16
maestro pistolero Senior Member Join Date: August 16, 2007 Posts: 2,153	He could've taken him straight to the ER where they could have drawn blood and gotten their sobriety test, while addressing the potential medical concerns. This addresses everything, including potential liability for taking someone in custody who was injured thereby depriving them of medical treatment.

June 19, 2013, 02:38 PM	#17
jmr40 Senior Member Join Date: June 15, 2008 Location: Georgia Posts: 10,805	If I understand this right, he was not arrested, just detained pending further investigation. Thus the reason for no rights being read. Had he been drinking he would have been arrested and read his rights. Am I correct here.

June 19, 2013, 05:44 PM	#19
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	@deepcreek - sometimes that's actually a very contentious issue. From what he described, I'm not sure I'd call it an arrest per se, though if he was taken to the police station he was certainly in custody. Doesn't sound like he was fingerprinted and/or booked, however, so from a legal perspective he may not have been arrested.

June 19, 2013, 05:55 PM	#20
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	What the police could have done is not necessarily the same as what they were legally required to do. Further, Miranda rights do not have to be read on arrest. Never have been. They've only been required when there's a custodial interrogation. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

June 19, 2013, 06:02 PM	#21
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	And let's be specific about what we're talking about here. A Miranda violation is not a get out of jail free card. Even if the judge/appellate court finds that your 5A rights were violated because you weren't properly Mirandized, it does not mean you necessarily walk away. At the trial level, it simply means that the prosecutor cannot use or refer to any statements you may have made after the moment when you were supposed to have been Mirandized and were not - and the appellate court may, of course, order a new trial and specify that such statements be excluded from presentation in the retrial. But it's rare that a Miranda violation will inherently result in a prejudicial dismissal (prejudicial dismissal means the case cannot be retried).

June 19, 2013, 06:05 PM	#22
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	@Spats - if memory serves, most PD's started doing the early Miranda readings to make it easier to conduct officer training. It can be quite murky indeed for the officer conducting an interview to pick that specific point at which a witness/interviewee becomes a custodial suspect/interrogatee. Much easier to tell them to Mirandize anyone they speak with who they think might be involved with the crime being investigated, methinks.

June 19, 2013, 08:18 PM	#23
Hawkeye146 Member Join Date: March 8, 2013 Location: Tennessee Posts: 28	First off he was not arrested, only detained for further investigation. After the investigation found he was not intoxicated he was let go. No questions asked pertaining to the DUI then no Miranda. What the officer SHOULD have done is as soon as he made the determination he was making an investigation he should have read him Miranda, makes trial easy for officer and DA. If the officer asked any questions pertaining to the DUI and did not give Miranda then any statements made would be inadmissible. __________________ Smooth is fast, PRESS the trigger

June 19, 2013, 09:23 PM	#25
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	One further point on the Miranda warning --- assuming one is required, violation does not mean the charge is dismissed. It means suppression of the statement made in violation or any resulting "fruit of the poisonous tree." I don't know about Arkansas's implied consent law but, in my state, if you don't consent to the test, your license is automatically suspended and the officer may still cite/arrest you for DUI based on his or her observations. You can take it to trial but then the fact finder is going to assume you refused because you were drunk (real life here, not the "presumed innocent" instruction given to jurors).