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  • Writer's pictureBrian Foley

The Woodlands DWI Attorney - When am I under Arrest and when do they ask for my Blood?

The Woodlands DWI Attorney - Brian Foley - Board Certified in Criminal Law

If you have been arrested for DWI you probably had a very long conversation with the police. It started with a traffic stop or talking to you after a wreck. The officer would likely have asked where you're coming from and where you were going and maybe why you were speeding or failed to use a signal to change lanes or turn. These questions are simple and people start answering them very quickly. But what about my rights? What about Miranda Rights to a lawyer before any police questioning. Well according to the terms of Miranda the Constitution's 5th amendment rights require the reading of Miranda warnings prior to "custodial" interrogation.

What is custodial interrogation? Well it means that you've been placed through the formalities that a reasonable person would believe constitute a formal arrest. When you are merely being detained temporarily by a police officer there is no requirement for them to read you Miranda warnings. Most DWI investigations including through the completion of standardized field sobriety tests, are considered temporary detentions. Therefore the officer can ask you questions about what's happening to see if you are intoxicated.

So when do you get arrested. Well when the officer is done giving the walk and turn, one leg stand, and horizontal gaze nystagmus tests then he has to read you what's called the DIC-24. This is a document that asks for a breath or blood sample and informs you of the driver's license consequences if you refuse. The first line of the DIC-24 is "You are under arrest for an offense arising under acts alleged to have been committed while operating a motor vehicle . . . or watercraft . . . " So are you under arrest then? Courts have rule that the answer to the question about getting a sample of blood may be admitted even if you have not been mirandized.

Typically an arrest takes place when hand cuffs are placed on the individual arrested and they are put in the back of the patrol car. But watch out, because patrol cars have microphones in them recording you and anything that you say in the vehicle will be available for the prosecutor to find.

It is only after this and the formalities of handcuffs and detention that you are likely to be ruled "in custody" and be afforded your 5th amendment right to have miranda warnings read to you prior to enforcement.

Brian was a member of the vehicular crimes team in Montgomery County, Texas.


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