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Defendant Alleges Inadequate Miranda Warning for DWI Arrest


There are many issues involved in any driving under the influence case that goes to court. Among them is the importance of delivering the refusal warnings correctly. If the refusal warnings are not given correctly, the evidence of the refusal cannot be used in court. This can create a situation that prevents the officers from being able to make an adequate case for DUI. In New York, the officers often use a videotaped warning for persons who are suspected of DUI who speak Spanish. Normally, this is an effective way to ensure that people who do not speak English are able to understand the warnings as well as the repercussions of a refusal.

A New York DWI Lawyer said however, problems can arise when a suspect does not behave in a predictable manner. In one case, which occurred in New York on January 14, 1998, Vice-officers were engaged in a prostitution sting. It was set up near East 242nd Street and White Plains Road in the Bronx. The defendant, who only spoke Spanish, was arrested when he drove up to an undercover police officer and offered her $20 for a sexual act. She notified her back up officers. When the arresting officer stopped the defendant, he approached the driver, who was the defendant. He noticed that the defendant exuded a strong odor of an alcoholic beverage from about his person, his eyes were blood-shot and glassy, and his speech was slurred. The arresting officer asked the defendant to exit the vehicle. When he attempted to exit the vehicle, he fell out of it face first. He was transported to the precinct where he was shown the Spanish language implied consent warnings. After the first section that ends with the question of whether the defendant would submit to the test, the tape was stopped. The defendant responded in a non-committal manner. He was rambling and uttering nonsense. After several attempts to get a sensible answer out of the defendant, the officer gave up and turned off the video tape of both the Spanish warnings, and the entire arrest.

When the refusal case was taken to court, one of the first problems was that the warnings were not completed. A New York DWI Lawyer said the second part of the tape that explains the repercussions of refusal was never played for the defendant. his failure effectively established that he had not been given the warnings correctly. That meant that the jury, in court, could not view any portion of the video of his arrest that concerned his refusal to take the test.

The state countered this by making a request to redact the tape to remove any portion that reflected his refusal and only use section that would show the jury what his demeanor was at the time of his arrest. The judge ordered a review of this redacted tape, before presentation in court. The state prepared it, and the judge accepted it. The defendant also requested that this tape be kept from the jury because he was not given his Miranda rights. However, the requirement for Miranda warnings is that the person be under arrest and being questioned.

After reviewing the tape, the judge found that after being arrested, the officer did ask the defendant a question. A Nassau County Criminal Lawyer said that since he did not Mirandize the subject at any time, it raised the question about the admissibility of the tape itself. However, the court determined that the partial refusal warning that the defendant was given did not at any time constitute an interrogation. The question that was asked, if the subject understood his rights, is not considered questioning under the law. That means that although the defendant was in custody, he was not entitled to Miranda warnings because he was not being questioned about his crimes. The tape was allowed in court.

Stephen Bilkis & Associates has NY Criminal Lawyers, in convenient offices throughout New York and the Metropolitan area. Do not lose your driving privileges. Our New York DUI Lawyers can defend anyone charged with DUI. Without an NY DUI Lawyer, you could lose your driver’s license or your freedom.

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