FAQ: They Didn't Read Me My Rights After Stopping Me For DUI, Can I Get The Case Dismissed?

Short Answer: Not presently.  The Case Law suggests that the answers you give to the questions an officer asks you at the side of the road after a traffic stop for DUI may be admissible against you without advising you of your Miranda rights. 

In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial.  The court held the subject was not under the belief that he couldn't leave.  The court further held that in this case, the questions were not intrusive. 

In my opinion, this issue is ripe for review in California.  The difference between the Berkemer stop and a typical DUI stop is that in the typical DUI stop the officer pulls you over for one reason (swerving, speeding, running a red light) and then starts asking you questions that have nothing to do with that stop (have you been drinking?  When? How Much?).  The officer almost invariably states in his report that prior to asking these questions, he formed an opinion that you were under the influence (red, watery eyes, slurred speech, trouble accessing license).  In the end, there are between 25-30 questions asked by the officer.  For these reasons, it seems much more intrusive, to a level that would trigger Miranda, to me.

In a good test case, the subject would answer the questions, but ask the officer -- repeatedly -- if s/he was free to leave.  If you are not free to leave, or do not believe you are free to leave, it becomes a custodial interrogation.

See our website DUI Defense LA for more information about what to do to avoid this issue when you're stopped by the police.

FAQ: Can I Drop Domestic Violence Charges Once I've Made A Complaint?

Frequent Answer:  No.  You can not drop Domestic Violence charges once you've made a verbal or written complaint.

The reason lies in the nature of criminal cases in that, unlike civil cases, it's simply not your case.  Your part is a solely witness.  The criminal case belongs to the prosecutor and only s/he can drop charges.  And s/he is really, really reluctant to do so.

The follow up question is often: What do I do now that I've filed charges and want to drop them.

This presents a sticky situation for the person filing charges.  You've made a mistake or have reconsidered, but the mistake may subject YOU to legal consequences.  By recanting the facts in your complaint -- either made to the officer verbally or put in a written complaint -- you open yourself up to criminal charges of filing a false complaint, obstruction of justice, or perjury (if they've signed or given testimony under oath) being filed against YOU.

You should have a lawyer -- separate and apart from the person you've accused's lawyer to protect YOUR interests and negotiate these turbulent waters.  One misstep can mean that you and the person you've accused can both wind up in big trouble.

The Los Angeles Defenders handle this fact scenarion often and have some tried and true strategies that can help those who no longer want to pursue criminal charges. 

The Circle Remains Unbroken

"Driving"

California case law (Alonzo) requires that a misdemeanor take place in the presence of the arresting officer.  California case law (Engleman) requires that the court not rely on circumstantial evidence in determining whether a misdemeanor takes place in an officer's presence.

DUI case.  Two elements: Driving and under the influence/.08 or above. 

Me: Did you see my client driving?
Officer: No.
Me:  Did you see my client behind the wheel?
Officer: No.
Me Did you see my client in the car at all?
Officer: No.

...

Me: Clearly, your honor he didn't see my client driving and can't form reasonable suspicion to detain my client.

Court:  No. He can use circumstantial evidence. 

Me:  No. Engleman.

Court: She admitted she drove.

Me: He had to form reasonable suspicion before he asked her.

Court: He can use circumstantial evidence.

The circle remains unbroken. 

Pros:  It was a consensual encounter.  I've provided caselaw.

Me:  Those are felonies.  Alonzo says a misdemeanor has to occur in the presence of the officer.

Pros:  But VC 21718 says you can't park on the side of the road.  He had a right to investigate.

Me: Sure, but as soon as he was told the car in front was broke down he had no reason to investigate further. Clearly, there has to be a broke-down car exception to VC 21718.

We then did the public policy dance.

Needless to say, my client lost the motion.

P.S. Once again, we learn: Don't talk to cops.  Ever.