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Old 14th January 2004, 03:18 PM   #1
Mr Manifesto
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How DOES "Miranda" Work?

I can't underline "Miranda" in the thread title, that's the only reason it's in quotes.

I was having a discussion with a friend of mine about Miranda in the US. I know that it originated from a case where someone was, I think, freed because he did not know about his right to remain silent. I also know that it was a staple of US cop shows ("tha' dirty bum killed a hundred people and he gets off BECAUSE WE DIDN'T READ HIM HIS RIGHTS?" "My hands are tied, hand in your badge, you've got 24 hours, etc, etc, etc").

How does Miranda actually work, though? From what Suddenly said in a different thread, you don't automatically get out of jail free just because a cop forgot to read you your rights while cuffing you during a PCP high among the family of five you just shot dead.
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Old 14th January 2004, 03:25 PM   #2
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I'm no lawyer, but I do watch a lot of movies and I think they only have to read you your rights if they arrest you, not "take you in for questioning".
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Old 14th January 2004, 03:35 PM   #3
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I think it's gotten more flexible in recent years, but I remember a good 15 years ago....

My friend's father was killed by a couple of teens who hired his limousine for a joyride, then decided to try to rob him instead of paying.

The one who was suspected of being the gunman was placed into a cell with a jailhouse snitch.

The trial took a serious diversion when the defense lawyer tried to make his confession to the snitch inadmissable because the defendant was not reminded of his "miranda" rights before being placed in jail.

Ultimately, this tactic failed, but it did have the family concerned for quite a while that the judge would throw out a key piece of evidence in the case.

Edited to add:
The defendant was read his rights when arrested.
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Old 14th January 2004, 04:45 PM   #4
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In general all Miranda as it is commonly referred to does is require the state to inform the arrested person of certain rights. The remedy for the state's failure is that any evidence obtained as a result of "custodial interrogation," (which requires that, you guessed it, that a person be interrogated while in custody) is excluded.

There are massive gray areas, and a failure to read someone his rights does nothing if there is no confession or statement in evidence. Furthermore, even if there is a statement that is excluded, any other evidence obtained independant of that statement can still be used.

It still pops up occasionally, but most cops blurt out the warnings anytime they get anywhere near anything that could be considered custody or interrogation, so there isn't a problem, and when there is it is usually obvious.
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Old 14th January 2004, 04:52 PM   #5
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Originally posted by specious_reasons
I think it's gotten more flexible in recent years, but I remember a good 15 years ago....

My friend's father was killed by a couple of teens who hired his limousine for a joyride, then decided to try to rob him instead of paying.

The one who was suspected of being the gunman was placed into a cell with a jailhouse snitch.

The trial took a serious diversion when the defense lawyer tried to make his confession to the snitch inadmissable because the defendant was not reminded of his "miranda" rights before being placed in jail.

Ultimately, this tactic failed, but it did have the family concerned for quite a while that the judge would throw out a key piece of evidence in the case.

Edited to add:
The defendant was read his rights when arrested.
The classic case in this regard is where the guy gets read his rights, and says he wants an attorney. Such a request makes any further interrogation illegal, unless the attorney is present.

Then, the guy runs his mouth in the holding cell, and someone snitches.

He is in custody, but he is not being interrogated, so his rights aren't violated, unless it turns out the "snitch" is an agent of the state tasked by the police to try to draw out a statement from him. "Agent" would include an officer telling another inmate "you get a confession from that guy and you will get a sweet deal."

Lots of gray areas, but the upshot is that the state can't use a prisoner to do what the state themselves can't do legally.
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Old 14th January 2004, 05:19 PM   #6
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They do keep "chipping away" at Miranda, largely on the grounds that it's common knowledge.

I attended a class a couple of years ago where the lawer that was giving the thing said you'd be insane to "mirandize" the suspect prior to actual questioning; he might make a spontaneous admission.

As Suddenly points out, the thing applies to questioning in a custodial setting. You have to be careful that the fellow (who may have limited English and/or reading skills) actually knows what you're talking about.
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Old 14th January 2004, 06:10 PM   #7
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Originally posted by Bikewer
They do keep "chipping away" at Miranda, largely on the grounds that it's common knowledge.
Actually they are pretty clear that the warnings must be given, even if the guy gets arrested every Saturday. The chipping away is more in the form of exceptions and allowing certain "tricks."
Quote:


I attended a class a couple of years ago where the lawer that was giving the thing said you'd be insane to "mirandize" the suspect prior to actual questioning; he might make a spontaneous admission.
But yet the cops use the warnings anyway. They mirandize and then inform the guy he isn't under arrest. I have no idea why, it seems to be that they are being overly cautious. Furthermore, since Miranda only applies after an arrest, the upshot is the officer is listing to the suspect rights the officer is not really bound to honor. Pre-arrest you basically have one right, the right to get up and leave.

I often try then to argue that since the warnings are a well known sign of arrest, that the warnings indicate arrest. so if they are incomplete or not honored then any confession should be excluded.

This worked once out of about the hundred times it came up.
Quote:

As Suddenly points out, the thing applies to questioning in a custodial setting. You have to be careful that the fellow (who may have limited English and/or reading skills) actually knows what you're talking about.
It also helps if he is sober.
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Old 14th January 2004, 08:00 PM   #8
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Hence the increasing use of video...
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Old 14th January 2004, 08:55 PM   #9
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Carmen Miranda???
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Old 14th January 2004, 09:00 PM   #10
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Originally posted by The Central Scrutinizer
Carmen Miranda???
Well if you're old school, then yeah. I'd rather see Miranda Richardson though.

And damnit, I was really hesitant on posting this sort of things as I didn't think anyone here would know who the hell Carmen Miranda was. this is the second time you beat me to the joke
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Old 14th January 2004, 09:55 PM   #11
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Miranda is one of those things that makes me itch. Supposedly, ignorance of the law is never an excuse for illegal or incriminating behavior. The mandatory reading of miranda rights flies in the face of this.

If anything, the reading of Miranda rights should be policy for local PD but not mandatory.

Miranda was a nice remedy at the time to a problem, it may be time to reconsider the reading being compulsory.
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Old 14th January 2004, 10:45 PM   #12
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Well, first you wiggle your hips and put your hands on your butt, oh wait, that's the meringue!

Miranda rights won't stop you from being arrested or convicted, only from incriminating yourself.

Here's a nice little treatise on the subject:

http://usgovinfo.about.com/library/weekly/aa012300a.htm
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Old 15th January 2004, 08:37 AM   #13
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Originally posted by corplinx
Miranda is one of those things that makes me itch. Supposedly, ignorance of the law is never an excuse for illegal or incriminating behavior. The mandatory reading of miranda rights flies in the face of this.

If anything, the reading of Miranda rights should be policy for local PD but not mandatory.

Miranda was a nice remedy at the time to a problem, it may be time to reconsider the reading being compulsory.
The funny thing is that Miranda is for the most part a very good police tool.

The idea is that a confession, to be admissible, must be voluntary. Once a person is arrested, we can only say a confession is voluntary if they knew they didn't have to give it, that he could remain silent or ask for a lawyer rather than continuing with the interrogation.

What Miranda allows is a magic bullet to cut through the obvious gray areas above, almost a magic hand washing. If the rights are given, and the person is able to understand them (not obviously drunk or other profound communication or cognitive problem) then it can be assumed the confession is voluntary.

Since the burden is on the state to show a confession is voluntary, Miranda is very valuable in that is allows the state a simple way to claim the confession was voluntary, we read him his rights.

Losing the implication that Miranda is THE way to ensure a suspect understands his rights well enough to make a confession voluntary would cause more problems for the police than it would solve, as then other subtle tricks the police often use would fall under more scrutiny.

It isn't a situation where ignorance of the law is no excuse, rather for a confession to be truely voluntary, a person must know he is not required to give it. Miranda is a helpful shortcut in that regard, that (in my experience) even the police are in no hurry to get rid of.
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Old 15th January 2004, 08:48 AM   #14
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Quote:
Originally posted by Suddenly


What Miranda allows is a magic bullet to cut through the obvious gray areas above, almost a magic hand washing. If the rights are given, and the person is able to understand them (not obviously drunk or other profound communication or cognitive problem) then it can be assumed the confession is voluntary.
Quick question for you pertaining to the above specific. If they volunteer the confession while drunk or otherwise, say before and after being mirandized, would it not still be admissable?

And, just out of curiosity, how would that affect consent to a bac check if you were drunk or otherwise under the influence at the time of admitting guilt. Or are there some other implications and laws that pertain to this?
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Old 15th January 2004, 10:15 AM   #15
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Originally posted by Troll


Quick question for you pertaining to the above specific. If they volunteer the confession while drunk or otherwise, say before and after being mirandized, would it not still be admissable?

Not if you are so drunk as to not be able to knowingly and voluntarily waive your rights to remain silent or request counsel.
Quote:


And, just out of curiosity, how would that affect consent to a bac check if you were drunk or otherwise under the influence at the time of admitting guilt. Or are there some other implications and laws that pertain to this?
Classically, BAC type evidence is not considered self-incrimination, rather a collection of physical evidence like if they found a bloody axe in your trunk. Different thresholds for different types of evidence. Plus, being over the legal limit of .10 or whatever does not mean a person is so intoxicated that he didn't understand his waiver. The standards are different.

I've never really had reason to make the challenge you suggest, as claiming that a person was too drunk to submit to a BAC test is, for obvious reasons, not going to be a very successful defense to a charge of Driving Under the Influence...
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Old 15th January 2004, 02:34 PM   #16
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I used to work with a former sheriff's deputy who said she and her coworkers would get a chuckle out of suspects they arrested in the act of committing a crime. Often they would, once in their jail cell, complain that they were never read their rights. The deputies would respond, "Sorry, pal, we don't need to say anything to you. We saw you punch the guy/break the window/swerving drunkenly off the road/whatever, and that's all we need to haul you to the jail and put you on the docket."
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Old 15th January 2004, 03:11 PM   #17
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When I worked as a volunteer police officer, we were given a wallet card to carry with us which listed the standard Miranda warning statements.

Personally, I never read them to a suspect until I had decided to arrest them. Maybe things are different now, but I never saw the need to read them until that time.

Our little wallet cards had a parenthetical statement after each Miranda right statement that read (do you understand? ) to remind us to ask that question after each statement. Occasionally, suspects would reply "No" to that question, so I'd read it again. If they answered "No" a second time, I'd continue on to the next Miranda right and repeat the above drill. If they kept answering "No", I just make note of it in my report and take them to jail, since I had done everything I could. I even had one guy tell me "I have a right to not be read my rights". Sooo....I just put that in the report. Judges and juries seem to love hearing what a jerk someone was the night they are arrested...it makes the defendant look soooo good in court.

Anyhow, I think reading a suspect his rights is a good thing. It's the fair thing to do, takes very little time, and essentially has very little effect on the life of a street cop.
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Old 15th January 2004, 06:06 PM   #18
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There was a bit of a hoo haa here in the UK when, a couple of years back, the rights changed. Or more accurately, they didn't.

We used to have the old "you have the right to remain silent; anything you say may be taken down and used in evidence against you."

When it changed, civil rights folks were up in arms about losing the right to silence.

In fact, you still have the right to silence. What you cannot do now is to stay silent upon arrest and remand, then come up at the last minute with your excuse or alibi, assuming you could have known the same information at the time of arrest.

People here, as in the US, are let off from crimes they undoubtedly did, on grounds of 'technicalities'. I'm not aware of anyone getting off on grounds of lack of reading or misreading of rights.

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Old 16th January 2004, 06:33 AM   #19
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Quote:
Originally posted by ratcomp1974
People here, as in the US, are let off from crimes they undoubtedly did, on grounds of 'technicalities'.
The only "technicality" people seem to get off on is the fact that the only evidence against them is a confession that the police tortured out of them. Sometimes a piece of evidence is thrown out on the "technicality" that it was obtained illegally, but usually the police and prosecution are smart enough to put together a competent case anyway.

Usually when you hear about a ruling on this kind of matter it's from an appellate court, and they sometime reverse a conviction because the trial judge made an error. But the guy doesn't get off, unless the case against him was weak to begin with. If the prosecutor has a strong case, they'll try him again.
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Old 16th January 2004, 06:49 AM   #20
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I always enjoyed learning about the various tricks the police used after reading Miranda warings to get suspects to talk.

For example: "Hey, you don't have to talk to us. Your buddy in the next room just rolled on you." (Even when not so)

Or:

"The lab tests just came back. DNA tests prove you were there." (When no such test was ever conducted)

On a related topic, how many criminal lawyers here have had their clients nailed for making incriminating statements via the jail phones that have big red warning signs posted next to the receivers stating that all conversations are being recorded?
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Old 16th January 2004, 01:37 PM   #21
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A few general comments:

Miranda only applies to agents of the government (employees or others assisting government agents).

I thought anyone in a "custodial interrogation" had to be Mirandized. This is not necessarily arrest - the test is subjective; if a reasonable person would not believe he was free to go, it's custodial (e.g., handcuffed and taken to the station as opposed to questioned on the street while passing by).

The "fruit of the poisonous tree" exclusionary rule applies to all evidence derived from actions taken based on a non-Mirandized statement. Independent evidence is fine. The exclusionary rule in general is designed to force authorities to comply with rules of criminal procedure - they don't, they can't use the evidence.

Miranda was convicted of raping a young girl. She ID'd him, they used that to convince him to confess which he did. He got away with it as a result, and the outcry was that the police were punished for not meeting a standard they didn't know existed, but the court held that most law enforcement agencies were reading rights to suspects and that the court was just codifying good practices. That's all from memory, so it may be off a bit.
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Old 16th January 2004, 01:50 PM   #22
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A new tactic by the police (is on the Supreme Court docket for this year) is to question the accused without Mirandizing. Then later Mirandize the person and question him again. The accused believing that he already confessed, confesses again, but this time after being Marandized.
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Old 16th January 2004, 01:55 PM   #23
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A little trivia

The Miranda warning was written by an attorney named Harold Berliner in the mid 1960's. Berliner had been the Public Defender in Nevada County Calif. in the late 1950's and then the DA in the 1960's. When the Miranda ruling came out of Arizona in the mid 1960's, the Attorney General of California decided they had better act and took submissions for a Miranda statement by county DA's from all over the state. Berliners was chosen. In an article last year, Berliner boasts that he is the most quoted author in the world!

The only reason I know this is that Berliners daughter and my wife are friends.
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Old 16th January 2004, 04:32 PM   #24
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What a fascinating and enlightening thread this has been. I really enjoy learning about things like this that we often feel we already know so much about because of TV.

I'm interested in hearing more about the situation in Britain. I remember hearing a bit about the changes to the rules a few years ago but didn't quite understand all the implications.
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Old 20th January 2004, 02:04 PM   #25
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The Miranda case only affected Miranda, who enjoyed his constitutional rights until he was killed in prison while serving time for other crimes, IIRC.

It was the Acevedo case that set the stage for the Miranda doctrine/warning, which has benefited other defendants.

A few points:

The test for arrest is more stringent than the test for custody...see Mendenhall, where there was no arrest, but the court ruled that there was custody.

The definition of interrogation hinges upon the 'focus of suspicion' test, so information uncovered in routine questioning is not an 'interrogation'...

'Spontaneous utterances' and 'inevitable discovery' are other circumstances where evidence obtained outside of Miranda can still be used.

Taking a BAC does not fall under Miranda, because of the prior consent given when asking for a license to drive.

Being too drunk to know that you were confessing to something does not violate Miranda either, because the state's duty is to protect you from forced self incrimination.
The courts have routinely held that police may trick someone into self incrimination as well.

Hope this helps...

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Old 20th January 2004, 02:33 PM   #26
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Being too drunk to know that you were confessing to something does not violate Miranda either, because the state's duty is to protect you from forced self incrimination.
The courts have routinely held that police may trick someone into self incrimination as well.

Maybe this is just in my state. The law here is that you can be too drunk to waive your rights under Miranda, as the state must show an intelligent waiver under Miranda. There is a question of fact there, as the court is given great lattitude in deciding whether a person was aware of his/her rights.

This assumes that Miranda applies. If it doesn't, then that is a different story.
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Old 20th January 2004, 08:47 PM   #27
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zultr is right. Miranda applies only to a custodial interrogation. There are basically three criteria, all of which must apply before an agent of the government is required to inform someone of their rights:

1) The agent must suspect the interrogated individual of a crime

2) The agent must intend to question the interrogated individual about that particular crime

3) The interrogation must be custodial

If any one of those three is missing, it is not require to Mirandize.


Clarifications:

1) "Suspect" is not strictly defined, but is not the same as merely thinking it is possible that a person committed the crime

2) If the cop suspects you of Crime X but only intends to ask you about Crime Y, he need not read you your rights

3) "Custodial" means that the suspect is not free to leave, even if not arrested. It is based on the suspect's perception, not the cop's, so if you don't want to make it custodial, then don't put the suspect on the side of a large table away from the exit which happens to have two really big mean-looking cops standing next to it. Regardless if the suspect technically may leave, he could reasonably believe he can't or be so intimidated that he can't.


Many cops get overly cautious and read someone their rights anytime they talk to them or take them under their control, even when not necessary. Sometimes it's a good tactic to impress upon someone the seriousness of their situation and thereby gain cooperation, for instance with a loudmouth young adult who thinks he's tough and knows it all then starts peeing his pants when the officer quietly says "Shut up. I'm going to read you your rights."

A final word of advice from my experience in private sector security. A private security officer, unless he is a peace officer or has some limited commission from the state, is NEVER required to read you your rights and can question you all day, and, yes, there are circumstances when the private security officer can physically detain you. (Hint: These are exactly the same circumstances when an electrician or plumber or doctor or student can physically detain you).
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Old 21st January 2004, 01:40 AM   #28
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I'm interested in hearing more about the situation in Britain. I remember hearing a bit about the changes to the rules a few years ago but didn't quite understand all the implications.
Well, the bit that people mistakenly understand to mean they have no right to silence goes something along the lines of "You have a right to remain silent, but you may not rely in court on something which you could have mentioned now." That's not the exact wording, but it's the gist of it.

It just means you can't get arrested, stay silent, spend a night in cells making up an alibi, then ring around your mates to get them to swear to it. It doesn't mean you can't remain silent. Nor does it mean you can't introduce new evidence as and when it becomes available.

Cheers,
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Old 21st January 2004, 08:45 AM   #29
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"The law here is that you can be too drunk to waive your rights under Miranda, as the state must show an intelligent waiver under Miranda."

(A lower court can give people MORE protections than the standard set by the US Supreme Court, BTW).
(Also note that confessing isn't the same thing as giving an intelligent waiver of rights...people are free to confess before, during, or after their Miranda warnings...Miranda just stops the police from further questioning, not from listening to say, drunken rantings that prove to be incriminating).

The intelligent waiver is part of the Miranda equation, but it is incumbent upon the suspect to show that they weren't competent...there is no requirement that the police officer, for example, read the warning in every langauage on Earth, or administer psychological tests for competency...they just have to ask 'Do you understand these rights'?, with an affirmative answer being sufficient to go on with interrogation.
The claim can later be raised, but it is an extraordinary claim, and would require some extraordinary proof.

As far as being too drunk to give an intelligent waiver, that would be a narrow case where the subject waived their rights, and could later prove that they were drunk, and not just feigning non-comprehension.
BACs are typically taken during traffic stops, where consent already exists, and courts have ruled the stops to be 'temporary detentions', not custody.
I suppose if someone wanted to get their own BAC to establish that they were drunk, and waived their Miranda rights they could trigger the statutory situation you describe, but I'm guessing it is rare...maybe in an emergency room situation, where the hospital records could establish intoxication.

take care

Paul Nunis
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