Silence is Golden. The tenth phase of the DRE protocol is the interview and documentation of statements of the test subject. DREs are trained to conduct a structured interrogation of the test subject and motorist. They will look for outright admissions and self-serving denials that fail to square with their purported observations. If you or a loved one has been arrested for OWI in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC at 319-389-1889.
The interview of the test subject is the tenth step of a twelve step protocol. It has been described by trainers as a “structured interrogation” of the suspected drug user and motorist.
According to Los Angeles Police Sergeant Thomas E. Page, M.A, “[i]n the United States, if the suspect has not been advised of his or her constitutional rights (Miranda warnings) previously, the DRE will do so at this point.” I applaud Sergeant Page for an instruction to law enforcement officers to honor a test subject’s Fifth Amendment right to remain silent and to an attorney.
However, Sergeant Page’s instruction is not universal followed. While the alcohol breath test is DRE stage one of a twelve stage protocol (usually performed at the station house in Iowa with a certified Datamaster DMT machine) an officer might try to move the interview up in time to the roadside—where they quiz a test subject about the OWI suspect's specific use of drugs. This may produce outright admissions or denials both of which can be used against the OWI test subject.
An oft repeated refrain in criminal defense is “the officer didn’t read me my rights.” Trained officers know they may not need to read to a test subject in the field the required Miranda warning if they can later convince a judge that (1) the defendant was not in custody; and/or (2) the officer was not engaged in interrogation. Both are needed to trigger the Miranda warning requirement. Officers will argue that a traffic stop—where Miranda is generally unrequired— had not escalated to a more serious investigation of narcotics, a custodial seizure that may result in an interrogation.
In Rodriguez v. United States, 191 L. Ed. 2d 492, 500 (U.S. 2015), the United States Supreme Court held that a traffic stop “prolonged beyond” the point of a traffic citation is “unlawful” without further suspicion a crime other than a traffic violation is afoot or contraband is present. Query whether a DRE-prolonged traffic stop was custodial requiring Miranda for the purpose of the Stage Ten interrogation-- thus requiring the Miranda warning.
Officers and prosecutors will argue that roadside sobriety testing does not rise to the level of “custody” and so therefore any DRE questioning need not be Mirandized. Regardless, with or without the warning, defendants have a right to remain silent and should use it.
An attorney limited exclusively to criminal law and licensed to practice law in Iowa will be able to help sort through these issues.
If you or a loved one has been arrested for Operating While Intoxicated, or, impaired, in Cedar Rapids, Iowa City, Waterloo, or other Iowa community, contact David A. Cmelik Law PLC at 319-389-1889 for a free initial consultation and begin charting your course back to life before legal crisis. However, remember that a blog is not legal advice and that sending unsolicited information to an attorney over the Internet does not establish an attorney-client relationship.
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