Alabama Criminal News: Supreme Court Puts Time Limit on Miranda's "Right to Remain Silent"

Posted on April 28, 2010 by Steven Eversole

The United States Supreme Court recently decided that the well-known Miranda right pertaining to “remaining silent” has an expiration date. This could have wide-ranging effects on individuals arrested for crimes in cities like Montgomery, Mobile, Huntsville and other smaller towns around Alabama. As a Birmingham criminal attorney, my first concern is to provide an aggressive defense to my clients.

With this latest Supreme Court ruling, a suspect in a criminal case could theoretically be questioned two weeks following his initial Miranda reading and actually not have the protection normally expected of that law. In fact, the Supreme Court has said that a suspect who invokes his "right to remain silent" under Miranda can be questioned again after 14 days if he agrees to talk to law enforcement authorities of his own free will, he could unintentionally incriminate himself, allowing prosecutors to essentially use those more recent statements against him in a court of law.

According to reports, the 9-to-0 Supreme Court decision over a child abuse case essentially overturned a nearly 30-year-old rule that has barred the police from questioning a suspect once he had asked to remain silent and to speak with a lawyer.

The "Edwards rule" as it is also known was initially created in 1981 to prevent investigators from harassing suspects who are held in jail following their invocation of their Miranda rights. Prior to the inclusion of this rule, it was not uncommon for police to awaken a suspect in the middle of the night and ask him again to waive his rights and to admit to a crime.

More recently, this rule has been understood to preclude the police from re-questioning a freed suspect, even for other crimes in other places. As part of their ruling, Supreme Court justices stated that although the rule made sense for suspects who were held in jail, it did not make sense for suspects who had gone free.

"In a country that harbors a large number of repeat offenders, the consequence [of this no-further-questioning rule] is disastrous," Justice Antonin Scalia said, adding, “If there has been a "break in custody" and the suspect has gone free, the police should be allowed to speak with him after some period of time.

According to court records, the Court settled on 14 days because it "provides plenty of time for the suspect to get reacclimated to his normal life [and] to consult with friends and counsel."

As a result of this ruling, the high court overturned a lower court decision, essentially saying that the incriminating statements made by the defendant in the child abuse case -- weeks after the original Miranda reading -- could be used to convict him. It’s important to note that while all nine justices agreed on the outcome, two did not agree with the 14-day rule -- Justice John Paul Stevens said that time period was too short, and Justice Clarence Thomas said it was too long.

 

Supreme Court puts expiration date on 'right to remain silent', LATimes.com, February 25, 2010


 

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Ways to Fight & Win Your Alabama DUI Continued...

Posted on April 8, 2008 by Steven Eversole

Today we are continuing with our discussion about 20 ways to beat a DUI charge in Alabama.  If you have been charged with Driving Under the Influence of Alcohol, here is part two of our 20 ways to beat your DUI.  Here goes another five ways an experienced and knowledgeable Alabama DUI lawyer or Alabama DUI attorney can beat your Alabama DUI charge:

6.  Rising Blood Alcohol Level:

A DUI suspect can blow a .15 at the police station; but have had a .07 BAC when he got pulled over. Why? Because alcohol takes an average of 50 minutes, but can take as long as three hours, to absorb fully into your bloodstream and create your peak blood alcohol level. This is critical if the DUI traffic stop occurred relatively soon after you finished drinking.

Your BAC was probably still rising when you blew in the machine. This means that even if your BAC was above .08 when the blood draw or breath test occurred at the police station (or hospital), it may well have been below .08 when you were actually driving. There is no law against having a BAC above .08 at a police station; it’s only the blood alcohol level while actually driving that counts for DUI purposes.

7.  Alabama Law Requires a 20 minute Observation Period Before The Breath Alcohol Test:

Alabama regulations require the officer to watch the DUI suspect continuously for at least 20 minutes prior to administering the breath alcohol test. The officer must make sure that during this period the person does not consume anything, burp, belch, hiccup or regurgitate. Any of these may cause alcohol to travel from the stomach to the mouth. Blowing this “mouth alcohol” into the breath machine triggers an exaggeratedly high BAC reading.

Officers rarely follow this required observation procedure. They usually perform paperwork, write reports, set up the machine and converse with their partners, diverting their attention from the DUI suspect who must be watched vigilantly during this period. Failure to follow this procedure casts doubt on the validity of the test result, and can sometimes get the test thrown out of court altogether.

8.  Inaccurate Blood-Breath Partition Ratio -- Ratio is should be based upon  Individual Differences:

DUI breath testing assumes that “breath alcohol” accurately reflects blood alcohol based on a 2100-to-1 partition ratio. This assumption rests on the proposition that the average ratio across the population is 2100-to-1. But studies reveal that the ratio of blood to breath varies greatly among individuals.

A DUI suspect with a ratio lower than 2100-to-1 will generate an inaccurately high reading from a breath alcohol test. And there’s no way to determine what a given person’s ratio is, or what it was at the time of the DUI breath test.

9.  The Police Officer Failed To Read You Your Miranda Rights:

Police must advise you of your Miranda Rights in a DUI case if (1) you are in custody and (2) they question you seeking to illicit an incriminating response. If the officers continued to interrogate you after placing you in custody for DUI, and did not first read you your Miranda rights and obtain a valid waiver, then your post-custodial statements will likely be excluded from evidence.

10.  Alcohol On Your Breath Does NOT Mean You Are Under the Influence:

In explaining why he believes you were drunk, the DUI officer almost always mentions smelling “a strong odor of alcohol on the suspect’s breath.” But the officer looks foolish on cross-examination when he admits that alcohol itself (ethanol) has no odor. Rather, it’s the mixing agent or flavoring that produces the odor we associate with alcohol. If you doubt this, go to the market and buy a 6-pack of a non-alcoholic beer. It tastes and smells just like beer; but it contains no alcohol.  Also, vodka is a colorless and odorless alcohol.  You could drink a gallon vodka and your breath would not smell.

Indeed, laboratory studies show that police officers’ perceptions of how strongly a person’s breath smells of alcohol simply doesn’t correlate with his/her actual blood alcohol level. All that can be gleaned from the “odor of alcohol on the breath” is that a DUI suspect probably consumed some alcohol recently. But it does not provide evidence that the person drank enough to be “under the influence” or to have a BAC .08 or higher.

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