Q. I was never read my rights, will my drunk driving case be dismissed?

A. In the context of a drunk driving arrest, there are really two sets of rights that should be read by the police; the Miranda rights and the chemical test rights. The Miranda rights address your right to speak with an attorney before being questioned by the police. A reading of the Miranda rights will include an affirmative statement by the police that what you say can be used against you in Court. In legal terms, the Miranda rights only apply to post-custodial statements that the prosecutor wants to use against you. Thus, if you are placed in custody but not advised of your Miranda rights, then your attorney can make the argument that any statements you made after you were placed in custody (such as how many drinks you had and when your first and last drinks were) cannot be used against you. The failure to read someone their Miranda rights does not often lead to a dismissal of a DUI case, but with the right attorney arguing the right facts, a dismissal might still be possible.

Chemical test rights are quite different. They are statutory in nature, and arise out of California's implied consent law. In California, when you drive an automobile, you impliedly consent to take a chemical test of your breath or blood. Thus, after you are arrested, the police officer must read you your chemical test rights. These rights must be read to you before the officer asks you to take such a chemical test. If you are not properly advised of your chemical rights, then you may be able to keep the police conducted test results out of evidence. In any event, both sets of rights should be discussed with your attorney so that you can determine what impact, if any, they might have on your case, and whether or not a violation in your case is sufficient cause to seek a dismissal.