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I have been charged with a DUI but was not arrested -the situation was fishy... Is it legal to hold someone for suspected dwai?
Anonymous2 views3 answers
After being pulled over for suspected DUI in CO, I am wondering, do I need a DUI attorney?
I was driving with a friend in Colorado, It was late, and I was in a jeep and on a road that is uneven. A jeep suspension is rough and I hit a bump in the road, which made me swerve slightly in my own lane, I did not cross the center lane. A cop pulled me over. He said he thought I was under the influence.
He waited for a second vehicle. This cop came and wanted me to do a breathalyzer. I did the breathalyzer test. He wanted roadside tests, which I passed without falling or stumbling and even recited my alphabet backwards. The testing cop then said to follow him to his car, I did and he opened the back door and said to sit, I did.
He then said I’m under arrest for dui. But he DID NOT Mirandize me nor did he search me or cuff me, but he did close the door on me (by the way there were no seat belts in the back). He then said we are going to the hospital for a blood test to see if I was under the influence. I said fine. When the alcohol blood test was complete he told me that I wasn't under arrest and I could go. WTF??
FYI when he said I was under arrest it was only he and I at his car and he did not read me my Miranda rights. He said I wasn't in front of 2 other officers and the lab tech. I have no previous dui or any dwai tickets.
It doesn't seem appropriate to play this deceptive game, holding me for suspected drunk driving with no proof. If he thought I was drunk, why was I not arrested? How is it legal for that situation where I passed the breathalyzer and road tests and even the blood test but was not arrested for DUI or DWAI in Colorado? I do have a witness.
Yes, it would be in your best interest to speak with a qualified DUI lawyer.
An officer does not need to arrest you to ask you to take a breathalyzer test. He does have to have probable cause to believe your driving ability is impaired by alcohol or drugs. He violated your Miranda rights, if he questioned you about driving while intoxicated after he had you get in the car.
DUIs are complex. You should consult with a DUI attorney.
Miranda becomes an issue during custodial interrogation: (1) you were in custody and (2) you were under arrest. Unless the officer questioned you after you were under arrest, it's not a violation of your 5th A. right. Police often ask questions of drivers prior to making a DUI arrest. The answers to questions-prior to being in custody-can by used against you. It's only when you are in custody that the police have to give you the Miranda warning.
In response to your question about the legality of your suspected drunk driving incident, you were arrested. Just because you didn't spend the night in jail or have to post bond, doesn't mean you weren't arrested.
As mentioned previously, Miranda is a warning/doctrine that is only required to be administered if you are in custodial arrest and are being questioned. If the office stopped asking you questions about how much you had to drink, when, where, etc; then he was not obligated to give you the Miranda warning.
In CO, upon arrest for suspicion of DUI, the officer has the discretion to release you to a sober party, send you to detox, make you spend the night in County Jail, post bond, etc. The fact that you did a PBT before the SFST's is an issue. You should seriously consider hiring a DUI defense attorney to assist you in fighting this charge.
At a minimum, you should take advantage of the free consultations that are offered by DUI Defense attorneys so that you can get answers to your questions and make an educated and informed decision as to how to proceed. Feel free to call my office to discuss your case. If this offense happened in Colorado Springs, I recommend calling an attorney by the name of Tim Bussey. Tim is one of the top DUI Defense attorneys in the country and his office is in Colorado Springs.
Best of luck
