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THE FOLLOWING ISSUES AND ANSWERS apply to one’s home, car or person. Whether you are stopped in a vehicle or your home is subject to imminent search, these principles apply to whatever type of questioning and investigation you are being subjected to.
- If the officer did not read me my Miranda Rights, can the case be dismissed?
- If stopped for a traffic infraction, must I consent to a search of my vehicle?
- Will I help myself by trying to explain?
- What happens if I refuse the breath test? Can I choose which test I want?
- Should I simply plead guilty with a .08 BAC test result?
- Are there variables, factors and sources of error on a breath test?
- At any point in an investigation, do I have a right to stop answering questions?
- Is there a way to seal a criminal arrest that did not result in a conviction?
- How long after a conviction must I wait for an Expungement – SECOND CHANCE LAW?
If the officer did not read me my Miranda Rights, can the case be dismissed?
As a general rule, it is never that cut and dry. Not until there is what is called a ‘custodial interrogation’ by a member of the Indianapolis Metropolitan Police force, or rural county sheriff, is the officer obligated to advise of your Miranda warnings. This is always fact sensitive. In Indiana there will be times when Miranda will apply to a DUI/DWI arrest and search, and when it will not. Our Indianapolis Criminal Defense Office can explain those intricacies for you at length.
If stopped for a traffic infraction, must I consent to a search of my vehicle?
Indiana Law is replete with numerous decisions dealing with such a question. And truly even the most minor variations on one facts can alter the actual response or ruling any given judge may render, but the short answer to this question is: No. You do not have to permit a search of your vehicle if you have been stopped say for speeding or a tail light out, or you name the minor traffic infraction. There must either be a ‘consent’ to search by you, or the officer needs a warrant, or as is sometimes the case – a K9.
Will I help myself by trying to explain?
You have the choice from the moment the officer first approaches you to answer his questions. You must supply your driver’s license and registration. It is always paramount to treat him or her with respect, and should be done in all of your responses. However, it is unlikely at this initial meeting that the first words out of the officer’s mouth will be to advise you about your 5th Amendment rights and Miranda. The officer has simply stopped your car at this point, and knows nothing about you. At this stage the officer has no obligation to give you a Miranda warning and you should not anticipate him doing so. You, on the other hand, are never required to make incriminating statements against yourself. This may well be the most significant, and frequently made mistake by the person stopped on suspicion of DUI/DWI. It is a natural tendency to want to explain the two glasses of wine with dinner, or to appeal to some sense of pity for your situation, or proximity to one’s abode. Thinking you may try to ‘talk one’s way out of it’ . When in fact, as an overwhelming rule, every incriminating word out of your mouth invariably can, and will, be replayed in front of a Judge or a Jury of your peers.
You have the right to remain silent. Again, fact sensitive, depending on your situation, but when in doubt, there is wisdom in that paraphrased Ancient Proverb: silence can be golden.
What happens if I refuse the breath test? Can I choose which test I want?
In Indiana, refusing the test has severe penalties if the prosecution is able to prove a knowing refusal. Indianapolis and surrounding counties prosecutions have gotten more punitive on refusals the past few years, most experts would concur, as has the law in this area. Be aware before any stop occurs. On a first DUI offense your license can be suspended for one year on the refusal, in addition to whatever penalty on the merits of your case. If you have a prior DUI conviction and refuse, your license can be suspended for two (2) years just on the refusal aspect.
More and more jurisdictions, and certainly in Marion County, Indianapolis, Hamilton County, Johnson County, Hendricks County, Hancock County will seek and obtain a warrant for a blood draw on a ‘refusal’ to submit to a breathalyzer,. This blood draw can be obtained without your consent. The bottom line, particularly in light of this warrant option: It is not useful, or productive, for you to refuse the test. And no, you do not generally get to ‘choose’ your alcohol test. If there is an accident or other extenuating circumstance, the officer may seek to do a blood test. You can ask, but do not believe your choice needs to be honored. It is standard practice for the officer to offer the Certified Breath test.
Should I simply plead guilty with a .08 BAC test result?
Absolutely not. This can be one of the most long term mistakes a person facing a DUI/DWI/OWI can make without an experienced defense attorney. In fact, lifelong. That is, to assume they have no defense to such a test result and must plead guilty. The variation that can occur with the average ‘breathalyzer’ result occupies decades of heated debate in precedent and in the courtroom. These should not be, and are not with proper representation, simple convictions. Before you plead guilty to anything – particularly such borderline cases, give us a call. It’s free and valuable.
Are there variables, factors and sources of error on a breath test?
There are considerable influences on a BAC Datamaster type Breathalyzer result. These sources of error have been aptly demonstrated for decades in the literature and Indiana case law. Often, expert testimony on some of these issues can prove invaluable. Some of those sources of error:
- Heartburn, Acid Reflux and Alveolar Air
- ‘Mouth Alcohol’ and waiting periods.
- Testing during the ‘absorptive period’
- Invalid assumptions on the Blood/Breath Partition Ratio
- Body Temperature: Illness, higher temperature.
- Breath from the lungs versus from lower in the stomach
- Demands from officer to ‘breath harder, harder’.
- Effect of burping during and/or prior to testing.
- Incomplete purging of the machine and the ‘air blank’ test
- The diabetic , or borderline diabetic, driver.
- Hematocrit: Solid particles to plasma in one’s blood. Breathalyzer results are a higher BAC with persons who have blood with a higher hematocrit percentage. Simple blood tests establish a person’s hematocrit.
- Individual Stress and Breathing: Holding one’s breath, or the reverse, hyperventilating, can cause significant fluctuation in the breath test, affecting blood flow and blood pressure.
At any point in an investigation, do I have a right to stop answering questions?
From the initial contact by police officers, whether this is out on the street in your vehicle or outside your front door, most people do not realize that the right to not answer questions is embodied within your most critical Fifth Amendment privileges. That right does not simply apply at trial. It is difficult for certain to keep this in mind, or maintain one’s clarity, with police lights raging in the background or with law enforcement less than gingerly tapping on your front or back door. Or if you have been invited to come down ‘for questioning’ on something you either do, or do not, know what the topics will be. You have the right to advise the officers from the moment of first contact, or through repeated hours of detention, that you do not choose to answer any questions without the assistance of your lawyer.
Is there a way to seal a criminal arrest that did not result in a conviction?
Yes. This falls under the New Expungement Section, but you can certainly expunge/seal such arrests from release.
How long after a conviction must I wait to Expunge that conviction – SECOND CHANCE LAW ? Depending on whether it was a Misdemeanor conviction or Felony conviction, the timing will vary. If it was a Misdemeanor, you must wait five (5) years after conviction to get it expunged. If it was a Felony conviction it is typically an eight (8) year period for lesser felony offenses and perhaps longer for the more serious felony offense. But you need to know – IT CAN BE EXPUNGED. Something that was generally never permitted in Indiana prior to this SECOND CHANCE LAW being passed.