One of the most common frequently asked questions I get regarding Virginia DUI / DWI cases has to do with Miranda rights. We’ve talked about what the Miranda rights are, and I have a video coming out about Miranda rights in a DUI case.
Here’s a twist that I haven’t discussed: My prior discussions have focused on the fact that you’re not in custody during a DUI investigation, so Miranda doesn’t apply. By the time you ARE in custody, the officer likely has all the evidence he needs to take you for a breath / blood test.
But what if you’re arrested for something other than DUI and THEN the officer becomes suspicious about DUI? That happened in the Gibson v. Commonwealth case.
In that case, the officer stopped Gibson and determined he was driving on a revoked license. The officer arrested Gibson and put him into the back of his cruiser.
While working on the paperwork, the officer smelled alcohol and became suspicious about whether or not Gibson was intoxicated. The officer took Gibson out and had him perform field sobriety tests (FSTs). But he had NOT given any Miranda warnings. The defense argued that the FSTs should be kept out of evidence.
The Court of Appeals ruled that FSTs aren’t “testimonial communication” within the meaning of the Fifth Amendment. The FSTs came into evidence. No Miranda was required.
Does that make sense to you? Probably not. Honestly, these distinctions are insane. The courts parse things very carefully and come up with rules that sometimes don’t make sense. But that’s all the more reason to consult with an attorney.
Photo by Howdy, I’m H. Michael Karshis
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