Miranda Warning During D.W.I. Traffic Stop

[Ray Deputy]

What is the name of your state? Missouri

After a subject has requested an attorney what may the Police Officer do in realtion to driving while intoxicated? Must the Officer stop all actions or as I believe may he continue field tests ?

Deputy Carl Harper
Ray County Sheriff's Department

[justalayman]

Originally Posted by Ray Deputy

What is the name of your state? Missouri

After a subject has requested an attorney what may the Police Officer do in realtion to driving while intoxicated? Must the Officer stop all actions or as I believe may he continue field tests ?

Deputy Carl Harper
Ray County Sheriff's Department

The fact that this question had to be asked by a deputy sheriff is actually a bit disturbing. I do not know the requirements to become a deputy sheriff in Ray County but I hope the include some form of police academy or similar training.

Not meaning to be insulting with this post, merely shocked that this question had to be asked. One would think that a basic requirement of a LEO would be training that would cover this. If it doesn't, I would definately push to make that a requirement of your local LEO positions.

It helps the department involved to be more professional but also saves mistakes that could cost many dollars (of public money) or even lives. It definately improves the acceptance of the department involved into the community (proffesionalism goes a long way when dealing with the public). I'm sure the local judges would appreciate dealing with cases that were processed properly as well.


education; it's a good thing

[BelizeBreeze]

I take the other position. The fact that a deputy sheriff asked the questions points to the confusion raised by the courts and the need to stay abreast of current decisions.

The fact is, the answer depends on the jurisdiction and circumstances of the detainment. It's that simple. It is not an inherent right or priviledge and each arresting officer needs to make the determination based on preservation of evidence, the combativeness of the offender and a host of other circumstances not available to us on an internet forum.

There IS no yes or no answer.

[CdwJava]

I would encourage the deputy to ask the question of his local prosecutor since it is that prosecutor that will have to deal with the results of any potential suppression motion that might result.

In general, there is no legal requirement to cease the FSTs when someone asks for an attorney. The suspect can certainly refuse to comply, but Miranda does not generally apply when asking the the suspect to walk, turn, and close their eyes. However, there may be some nuance in MO law that only the prosecutor in his jurisdiction might be aware of.

- Carl

[BelizeBreeze]

Missouri Revised Statutes
Chapter 577
Public Safety Offenses
Section 577.020

Chemical tests for alcohol content of blood--consent implied, when --administered, when, how--information available to person tested, contents--videotaping of chemical or field sobriety test admissible evidence.

577.020. 1. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent to, subject to the provisions of sections 577.019 to 577.041, a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood pursuant to the following circumstances:

(1) If the person is arrested for any offense arising out of acts which the arresting officer had reasonable grounds to believe were committed while the person was driving a motor vehicle while in an intoxicated or drugged condition; or

(2) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person was driving a motor vehicle with a blood alcohol content of two-hundredths of one percent or more by weight; or

(3) If the person is under the age of twenty-one, has been stopped by a law enforcement officer, and the law enforcement officer has reasonable grounds to believe that such person has committed a violation of the traffic laws of the state, or any political subdivision of the state, and such officer has reasonable grounds to believe, after making such stop, that such person has a blood alcohol content of two-hundredths of one percent or greater;

(4) If the person is under the age of twenty-one, has been stopped at a sobriety checkpoint or roadblock and the law enforcement officer has reasonable grounds to believe that such person has a blood alcohol content of two-hundredths of one percent or greater;

(5) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality or a readily apparent serious physical injury as defined in section 565.002, RSMo, or has been arrested as evidenced by the issuance of a uniform traffic ticket for the violation of any state law or county or municipal ordinance with the exception of equipment violations contained in chapter 306, RSMo, or similar provisions contained in county or municipal ordinances; or

(6) If the person, while operating a motor vehicle, has been involved in a motor vehicle collision which resulted in a fatality or serious physical injury as defined in section 565.002, RSMo.

The test shall be administered at the direction of the law enforcement officer whenever the person has been arrested or stopped for any reason.

2. The implied consent to submit to the chemical tests listed in subsection 1 of this section shall be limited to not more than two such tests arising from the same arrest, incident or charge.

3. Chemical analysis of the person's breath, blood, saliva, or urine to be considered valid pursuant to the provisions of sections 577.019 to 577.041 shall be performed according to methods approved by the state department of health and senior services by licensed medical personnel or by a person possessing a valid permit issued by the state department of health and senior services for this purpose.

4. The state department of health and senior services shall approve satisfactory techniques, devices, equipment, or methods to be considered valid pursuant to the provisions of sections 577.019 to 577.041 and shall establish standards to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits which shall be subject to termination or revocation by the state department of health and senior services.

5. The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person at the choosing and expense of the person to be tested, administer a test in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.

6. Upon the request of the person who is tested, full information concerning the test shall be made available to such person. Full information is limited to the following:

(1) The type of test administered and the procedures followed;

(2) The time of the collection of the blood or breath sample or urine analyzed;

(3) The numerical results of the test indicating the alcohol content of the blood and breath and urine;

(4) The type and status of any permit which was held by the person who performed the test;

(5) If the test was administered by means of a breath-testing instrument, the date of performance of the most recent required maintenance of such instrument.

Full information does not include manuals, schematics, or software of the instrument used to test the person or any other material that is not in the actual possession of the state. Additionally, full information does not include information in the possession of the manufacturer of the test instrument.

7. Any person given a chemical test of the person's breath pursuant to subsection 1 of this section or a field sobriety test may be videotaped during any such test at the direction of the law enforcement officer. Any such video recording made during the chemical test pursuant to this subsection or a field sobriety test shall be admissible as evidence at either any trial of such person for either a violation of any state law or county or municipal ordinance, or any license revocation or suspension proceeding pursuant to the provisions of chapter 302, RSMo.


Furthermore: Unlike all other crimes, DWI arrests without warrant must be made within 90 minutes of the violation. 577.039. Collette v. Director of Revenue, 717 S.W.2d 551 (Mo. App. 1986).

By statutory law, effective July 1992, a Defendant has 20 minutes to try to contact his attorney before he must submit to the test or be deemed to have refused. 577.041.1.

Missouri Supreme Court has held there is no constitutional right to consult with counsel prior to deciding whether or not to submit to a breathalyzer test. Spradling v. Deimeke, 528 S.W.2d 759 (Mo. 1975).

Missouri Courts have held, though, that a right to consult with counsel prior to deciding whether to consent to chemical testing exists, but offering the use of a telephone is nough says Curry v. Goldberg, 614 S.W.2d 318 (Mo. App. 1981); the right does not extend to have an attorney present during the test, unless the attorney is already at the test location, Curry; (if lawyer arrives before or during test, suspect has a right to have the attorney present).

Kilpatrick v. Dir. of Revenue, 756 S.W.2d 214 (Mo. App. 1988) is a good recent case. Defendent said he wanted to talk to lawyer before taking test, called his lawyer three times but could only get answering service. Police policy was to allow 20 minutes for Defendent to get a lawyer to the station before requiring suspect to decide to take test or refuse it. Court reaffirms that suspect does not have constitutional right to consult with lawyer before deciding whether to take breath test, nor does he have the right to have counsel present at such a test, or to condition his consent to take the test on the presence of his attorney, but does have a limited right to consult with counsel.

DECISION: This limited right honored by allowing him to try to telephone his lawyer, and by giving him 20 minutes to locate the lawyer. He had a reasonable opportunity to consult, and that is all that is required. 577.041.1, RSMo

[panther10758]

As many of you know I am a recovering alcoholic of over 20 years! during my drinkng days I did aquire some DUI's. Now in every case I was given my miranda rights! Now you think slam dunk its not! The miranda warnning came at time of arrest! I was not until after field soberity test had been given me. Before that test I was not under arrest and my miranda rights were not in play! Now I am not an expert but based on my experience that is my take on this issue.

[BelizeBreeze]

Originally Posted by panther10758

As many of you know I am a recovering alcoholic of over 20 years! during my drinkng days I did aquire some DUI's. Now in every case I was given my miranda rights! Now you think slam dunk its not! The miranda warnning came at time of arrest! I was not until after field soberity test had been given me. Before that test I was not under arrest and my miranda rights were not in play! Now I am not an expert but based on my experience that is my take on this issue.

Read my response immediately before yours. In Missouri, where this question came, you do NOT have to be under arrest for you to be allowed to contact counsel before administration of the test.

However, the police are not required to assist that contact nor are they enjoined from beginning the test, nor are they required to place you under arrest before administering the test.

[CdwJava]

Placing someone under arrest BEFORE conducting FSTs can be very problematic as Miranda will often apply as many of the FSTs include questions such as: "How much have you had to drink? Do you feel the effects of those drinks now?"

Since the FSTs are designed to help the officer who is investigating the possibile crime to form an opinion as to the impairment of the driver, it kinda removes the investigative aspect from the equation when you make the arrest before the investigation ... kinda tosses objectivity away.

In fact, we had one case in CA that went south when the officer requested a tow truck for the impound of a vehicle (pursuant to an arrest for DUI) prior to even conducting the FSTs. The fact that he did not tell the suspect of this decision was irrelevant as he had already acted on the pending arrest. Hence, the reason we ask many questions prior to starting the FSTs, and why we are generally trained to Mirandize after the arrest.

Fortunately, this is a rare phenomenon. Unfortunately, sometimes supervisors tend to do this sort of thing. More than one time as a young cop would I roll up on a scene at the sergeant's call only to find the suspected DUI driver handcuffed to the windwing of his car, or in cuffs in the back of the sergeant's car. I would then hear, "He's drunk - do the tests."

Ugh!

- Carl

[justalayman]

I,m back to being impressed BB That is impreeisve research. The only thing I am puzzled about though is that the last decision seems to point to the law that was enacted several years later as direction and support. Even if the final decision had not been rendered until the law was passed, it still could not retroactively apply it.

I take the other position. The fact that a deputy sheriff asked the questions points to the confusion raised by the courts and the need to stay abreast of current decisions.

That's my point. The local LEO divisions need to be sure their officers are kept updated and updated correctly.

If the deputy must ask here, that means he is not being recieving proper direction from his controlling agency. Obviously something that is a constant undertaking due to the ever changing laws and decisions.

Maybe I'm being over reactive to the OP simply seeking clairification to his training and if so, I applaud him for doing so. or; he believes he has been instructed incorrectly. again, my respects to him for seeking an answer.

All in all though, your post BB seemed to be a fairly un-ambigious answer to the question.
It would seem Missouri had enough problems they have clarified the situation.

[CdwJava]

Originally Posted by justalayman

That's my point. The local LEO divisions need to be sure their officers are kept updated and updated correctly.

Sometimes the status of the law changes so frequently - or issues come up that render the situation so confusing - that LEO administrations cannot always keep abreast of the changes. This educational function is more appropriately a function of the state Attorney General and the local prosecutor's office. I would rather have my legal clarifications coming from the legal eagles whose job it is to make the case I am involved in - not from an administrator whose training and expertise is not likely as an attorney or judge.

- Carl

[Ray Deputy]

I was dispatched to a call about a man with a gun on the outside of a house threatening the people inside. Upon arrival I was informed that the individual had left in a White Chevrolet Pickup - shortbed with D*** B*** driving the truck. I went toward the direction he had left in and found a white chevy truck. i stopped the vehicle and the man latter was tested by Missouri Highway Patrolman as being under the influence. The subject asked him for a Lawyer and the Trooper continued with the Sobriety Field Tests. In court the Defense Attorney claims that the Trooper should have stopped all actions after the subject asked for a Lawyer. The Judge has not given his ruling. In addition we found two cans of beer in a cooler and a pistol by the driver seat. The attorney is claiming that I did not have probable cause to stop that truck. I am saying under Terry vs Ohis that I do! I am not sure about Miranda and DWI Tests. Also when I ran the man he had a warrant for his arest from an ajoining county for driving intoxicated with a firearm. So!!?? Does the arrest for the warrant mess up the new DWI incident.

Thanks for the help.

Carl

[BelizeBreeze]

Originally Posted by Ray Deputy

I was dispatched to a call about a man with a gun on the outside of a house threatening the people inside. Upon arrival I was informed that the individual had left in a White Chevrolet Pickup - shortbed with D*** B*** driving the truck. I went toward the direction he had left in and found a white chevy truck. i stopped the vehicle and the man latter was tested by Missouri Highway Patrolman as being under the influence. The subject asked him for a Lawyer and the Trooper continued with the Sobriety Field Tests. In court the Defense Attorney claims that the Trooper should have stopped all actions after the subject asked for a Lawyer. The Judge has not given his ruling. In addition we found two cans of beer in a cooler and a pistol by the driver seat. The attorney is claiming that I did not have probable cause to stop that truck. I am saying under Terry vs Ohis that I do! I am not sure about Miranda and DWI Tests. Also when I ran the man he had a warrant for his arest from an ajoining county for driving intoxicated with a firearm. So!!?? Does the arrest for the warrant mess up the new DWI incident.

Thanks for the help.

Carl

A case like this and an answer depends on the totality of all facts. We can't give you anything other than opinion since we don't have the case file.

[Ray Deputy]

Originally Posted by justalayman

The fact that this question had to be asked by a deputy sheriff is actually a bit disturbing. I do not know the requirements to become a deputy sheriff in Ray County but I hope the include some form of police academy or similar training.

Not meaning to be insulting with this post, merely shocked that this question had to be asked. One would think that a basic requirement of a LEO would be training that would cover this. If it doesn't, I would definately push to make that a requirement of your local LEO positions.

It helps the department involved to be more professional but also saves mistakes that could cost many dollars (of public money) or even lives. It definately improves the acceptance of the department involved into the community (proffesionalism goes a long way when dealing with the public). I'm sure the local judges would appreciate dealing with cases that were processed properly as well.


education; it's a good thing

I agree that I should have the training. I do. However the money hungry sharks that take you to court and fight an obvious stupid legal point did not go to the same academy that I did!

Deputy Carl Harper

[BelizeBreeze]

Originally Posted by Ray Deputy

I agree that I should have the training. I do. However the money hungry sharks that take you to court and fight an obvious stupid legal point did not go to the same academy that I did!

Deputy Carl Harper

I'd like you to remember that comment the next time you are facing a judge...

[Ray Deputy]

My conversations with my Judges give me the impression that they agree with me. When a person goes to court and is in front of a Judge he deserves all the legal advise that he can get. The courts are so crowded that it is my impression that much is plea bargained or shoved together to save court time. If you could get the sharks to think like an attorney had tell people who are guilty to plea bargain not drag out all the time and expense of already depleted Public Defenders I think it would be better. I have pitures taken by a neghbor of a burglary. What do you want to bet that person will plead not guilty and wast resources.

No discrespect ever meant to Attorneys.

Deputy Carl Harper