question in my home?

[koyoboo]

state of alaska. I was not pulled over. i was questioned in my home, not read my rights. but in the police statement it said that i told the officer i said i was drunk and i drove. can i get the statement thrown out?

[CdwJava]

Originally Posted by koyoboo

state of alaska. I was not pulled over. i was questioned in my home, not read my rights. but in the police statement it said that i told the officer i said i was drunk and i drove. can i get the statement thrown out?

No.

Why should the statement be thrown out? Unless you were in handcuffs or told you were under arrest, Miranda (admonishment of rights) would not apply.

- Carl

[garrula lingua]

? You can't be forced to testify against yourself.

Driving must have been observed (by someone other than yourself ).

[CdwJava]

Originally Posted by garrula lingua

? You can't be forced to testify against yourself.

Driving must have been observed (by someone other than yourself ).

Unless one of the exceptions applies ... collision, etc.

- Carl

[LawGirl10]

Originally Posted by garrula lingua

? You can't be forced to testify against yourself.

Driving must have been observed (by someone other than yourself ).

Not true in all states.

[garrula lingua]

What are the facts, koy ?

Was this a hit-and-run ?

[koyoboo]

there was no accident. from what i have read, if the officer is investigating a crime, he does not have to miranda witness'. but what i am saying is i am not a witness, i am the suspect. is that not true in this case?

[garrula lingua]

You have to give more facts. What happened ?
What did the cop say you did ?
What charge was the cop speaking about ?

Were you questioned at your house or the police station ?
Were you free to leave the interview ?

For Miranda to apply, you must be in custody & being interrogated.
If you were not in custody, Miranda does not apply.

Give more facts - what happened ?

[HomeGuru]

Originally Posted by koyoboo

state of alaska. I was not pulled over. i was questioned in my home, not read my rights. but in the police statement it said that i told the officer i said i was drunk and i drove. can i get the statement thrown out?

**A: it was true, you were drunk and you drove. Case closed.

[CdwJava]

Originally Posted by koyoboo

there was no accident. from what i have read, if the officer is investigating a crime, he does not have to miranda witness'. but what i am saying is i am not a witness, i am the suspect. is that not true in this case?

You were questioned IN your home. Unless you were in cuffs and under arrest, Miranda would n ot be necessary. Miranda is only required when both custody (equivalent to that force used in an arrest) and interrogation occur. If you were in your living room, I seriously doubt you were under arrest.

- Carl

[garrula lingua]

AS 28.35.030. Operating a Vehicle, Aircraft or Watercraft While Under the Influence of An Alcoholic Beverage, Inhalant, or Controlled Substance.

(a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft
(1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or
(2) and if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person's breath.


(b) Except as provided under (n) of this section, driving while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor. Except as provided under (p) of this section, upon conviction,
(1) the court shall impose a minimum sentence of imprisonment of
(A) not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted;
(B) not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once;
(C) not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (n) of this section;
(D) not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (n) of this section;
(E) not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (n) of this section;
(F) not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (n) of this section;
(2) the court may not
(A) suspend execution of sentence or grant probation except on condition that the person serve the minimum imprisonment under (1) of this subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person's driver's license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under AS 28.35.036 ; and
(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law.
(g) Notwithstanding (b) of this section, if the court imposes probation under AS 12.55.102 the court may reduce the fine required to be imposed under (b) of this section by the cost of the ignition interlock device.
(h) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services, under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (n) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.



kOY, The Prosecutor will have to prove 2 things:
1. You were driving or operating a vehicle
2. You were 'under the influence' as stated in the code.

I don't know of any Prosecutor who successfully tried a DUI when the only proof of driving was the defendant's statement at a later date.
This is different than a car on the side of the road, engine warm, keys in ignition, Def in driver's seat or car blocking roadway, defendant at scene or near, keys in De's pocket, etc.
...unless, the Def isn't sharing all the facts.

[gawm]

Originally Posted by CdwJava

You were questioned IN your home. Unless you were in cuffs and under arrest, Miranda would n ot be necessary. Miranda is only required when both custody (equivalent to that force used in an arrest) and interrogation occur. If you were in your living room, I seriously doubt you were under arrest.

- Carl

Does not have to be in cuffs. Were you free to leave your living room? Were you allowed to show the officer out and go to bed? These are questions that will make a difference in determining if you were under arrest or not.

[CdwJava]

Originally Posted by gawm

Does not have to be in cuffs. Were you free to leave your living room? Were you allowed to show the officer out and go to bed? These are questions that will make a difference in determining if you were under arrest or not.

The test wil be if the FORCE used to effect the detention was equivalent to that used in a custodial arrest. Being detained in your living room is NOT sufficient - by itself - to invoke Miranda. If the subject told the officer to leave and he refused, there MIGHT be an issue ... unless the officer had some other lawful reason to remain.

However, the impression from the post is that the officer came over to talk to the OP, the OP talked to him inside and admitted to driving DUI and now he is trying to figure out if he can wiggle out of his admission. My guess is that he cannot ... but, absent any observed driving, a collision, etc., it may all be moot because the elements of the offense may not even have been met so no charges may be pending.

- Carl

[gawm]

Originally Posted by CdwJava

The test wil be if the FORCE used to effect the detention was equivalent to that used in a custodial arrest. Being detained in your living room is NOT sufficient - by itself - to invoke Miranda. If the subject told the officer to leave and he refused, there MIGHT be an issue ... unless the officer had some other lawful reason to remain.

However, the impression from the post is that the officer came over to talk to the OP, the OP talked to him inside and admitted to driving DUI and now he is trying to figure out if he can wiggle out of his admission. My guess is that he cannot ... but, absent any observed driving, a collision, etc., it may all be moot because the elements of the offense may not even have been met so no charges may be pending.

- Carl

I agree with you on the impression part. That's probably how it happened.

What I don't understand is the force part. The way you capitalized FORCE it makes it seem that there would have to be some kind of struggle? From my own experience, all it took was me being told I could not leave until I talked with detectives. I was never put in cuffs and I was not even arrested on that night but my attorney was able to suppress everything I said to the detectives.

[CdwJava]

Originally Posted by gawm

What I don't understand is the force part. The way you capitalized FORCE it makes it seem that there would have to be some kind of struggle?

"Force" being that level of physical or environmental control or restraint applied to the subject to control him or her.

The following applies:

(1) the suspect must in fact have been formally arrested or had his freedom restrained to a degree associated with a formal arrest (Stansbury (1994) 511 U.S. 318; Beheler (1983) 463 U.S. 1121, 1125; Esqueda (1993) 17 Cal.App.4th 1450, 1481; Ochoa (1998) 19 Cal.4th 353, 401; Norris (9th Cir. 2005) 428 F.3d 907, 912); and

(2) the suspect must personally be aware of this lack of freedom or reasonably believe that it exists (Beheler (1983) 463 U.S. 1121, 1125; Green (1985) 40 Cal.3d 126, 133-134; Mazza (1985) 175 Cal.App.3d 836; Valdivia (1986) 180 Cal.App.3d 657; Breault (1990) 223 Cal.App.3d 125).

In the words of the United States Supreme Court, "the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." (Stansbury (1994) 511 U.S. 318, 322, quoting from Beheler (1983) 463 U.S. 1121, 1125; Joseph R. (1998) 65 Cal.App.4th 954, 960.)

From my own experience, all it took was me being told I could not leave until I talked with detectives. I was never put in cuffs and I was not even arrested on that night but my attorney was able to suppress everything I said to the detectives.

That depends on the situation. If you were forced to remain for a substantial period of time, it might be considered an arrest under your state's laws.

For instance, if I go to a scene of a domestic disturbance and the husband (aka 'the suspect') wants to leave, and I tell him, "no", Miranda still does not necessarily apply and I can still ask him what happened without Miranda - even if I see visible injuries to his partner thus indicating he is probably going to jail anyway.

And, from CA and the 9th Circuit (after opining that an interview at a police station where a suspect is told he cannot leave he should be Mirandized):

On the other hand, at virtually any other location, there is no Miranda custody unless the person has been arrested or subjected to equivalent restraints on his freedom of movement. Thus, away from a police station, you may _detain_ a person--which means the person is not free to leave--and yet not have to Mirandize that person, as long as the suspect has not actually been arrested or subjected to equivalent restraints. _Persons temporarily detained are not 'in custody' for the purposes of Miranda._ (Berkemer (1984) 468 U.S. 420, 430-433.) In short, at any location other than a police station, the key is _actual arrest or equivalent restraints_ rather than the application of the _free to leave_ test. (Stansbury (1994) 511 U.S. 318, 322; Beheler (1983) 463 U.S. 1121, 1125; Coutchavlis (9th Cir. 2001) 260 F.3d 1149, 1157-1158; Joseph R. (1998) 65 Cal.App.4th 954.)

EDIT: A caveat here ... while federal law regarding Miranda is supposed to be the same nationwide, the various Circuit Courts of Appeal DO interpret these matters differently. Since the OP lives in the 9th Circuit as does my state of CA, chances are good that the same interpretations apply in his state as mine unless AK offers greater protections under Miranda than most others.

- Carl