Dirt Bike DUI in North Carolina

[casibru2]

What is the name of your state?My husband got a dui ticket for riding a dirt bike on a neighborhood steet, his arrest was immediate because the officer claimed to smell the odor of alchohol. He was given no field tests and refused the intoxilyzer. He was read no rights until afterwards, right before he was taken to jail. He asked for a blood test during interrogation but was told that the blood test would be more incriminating than the intoxilyzer. Since then the officer was issued a supboena for the DMV hearing and it was returned, the officer has left the police dept. The hearing officer has said she will dismiss the refusal case if the officer does not show. What is the law in NC concerning an arresting officer who is no longer employed as an officer? Will the court track him down to testify against my husband as a civilian? He went to court today and the case was not dismissed, it was continued until they could get the address of the former officer.
Any advice is appreciated.

[LawGirl10]

Originally Posted by casibru2

What is the name of your state?My husband got a dui ticket for riding a dirt bike on a neighborhood steet, his arrest was immediate because the officer claimed to smell the odor of alchohol. He was given no field tests and refused the intoxilyzer. He was read no rights until afterwards, right before he was taken to jail. He asked for a blood test during interrogation but was told that the blood test would be more incriminating than the intoxilyzer. Since then the officer was issued a supboena for the DMV hearing and it was returned, the officer has left the police dept. The hearing officer has said she will dismiss the refusal case if the officer does not show. What is the law in NC concerning an arresting officer who is no longer employed as an officer? Will the court track him down to testify against my husband as a civilian? He went to court today and the case was not dismissed, it was continued until they could get the address of the former officer.
Any advice is appreciated.

Yes, the court can call the former officer in and he can testify as to what occurred while he was a police officer. The legitimacy of his testimony is not affected by his current civilian status.

No, your husband does not have to be read his rights. Miranda is only required if there is interrogation while in custody. Custody is an arrest or what the court would determine to be the equivalent of arrest. From the facts that you recited, interrogation did not take place. Even if Miranda had been required, that does not make the arrest invalid. It only means that testimonial evidence gained as a result of a Miranda violation cannot be used in the Prosecutor's case in chief. Anything gained as a result of a Miranda violation can be used for impeachment or introduced if specific evidence is found (example: a weapon is used in a crime and the police find it as a result of a Miranda violation, this can be used). Asking a person to take a blood test is not interrogation.

As for the incident itself, you should speak to an attorney. An attorney should look over the case to determime if the officer had enough probable cause to arrest him for a DUI without field sobriety or chemical testing. It is possible to get a conviction without these tests, but it is a fact based determination regarding the observations the officer made about your husband's driving, appearance, etc.

[BelizeBreeze]

Now be honest. Do you get paid by the word?

[LawGirl10]

Originally Posted by BelizeBreeze

Now be honest. Do you get paid by the word?

LOL. I do have a problem with making it short and sweet don't I? But no, no payment based on the number of words. I am not an attorney, just one in the making. How do I sound so far?

[BelizeBreeze]

Originally Posted by LawGirl10

LOL. I do have a problem with making it short and sweet don't I? But no, no payment based on the number of words. I am not an attorney, just one in the making. How do I sound so far?

You sound like an attorney. And a hell of a lot more on-point than most law students or wannabes that show up here.

Of course, I would have simply told her "your drunk-assed husband has no standing (or stumbling)...."

but then, that's me

[LawGirl10]

Thanks for the compliment!

[Alchohol_Free]

Riding a dirt bike on a public street under the influence? Being a former alchohol abuser myself, it's really scary to see what crazy things alchohol can do to people.

Sounds like this will be all about whether they will be successful in getting the arresting officer to testify. The court's going to work very hard to make this happen.