No. Failure to read someone his rights does not require dismissal. Miranda warnings are generally not required unless the police question a suspect while the suspect is in custody. Even then, the only “penalty” for failing to read Miranda rights to a suspect is that the statement made by the suspect might not be allowed in a trial.
You are under no obligation whatsoever to perform any physical tests like watching a pen, balancing on one leg, or walking a line. There is no legal penalty for refusing those tests. Don’t fall for a line like “Well, if you refuse to do the tests, you’re giving me no choice but to arrest you”. You may be arrested when you refuse, but the officer really decided to arrest you before he asked you to do the tests. Politely and respectfully declining to do any tests prior to consulting with an attorney will go a long way to helping your defense.You have never performed the tests that he is requesting. Regardless of how well you think you will do on the tests, you will learn you failed the tests. Even officers who have done the tests hundreds of times fail to administer the tests by the book. When the officer asks you to perform for him, politely state that you must speak to an attorney before deciding whether to perform any test.
If you are stopped, you are probably being videotaped. Be polite and courteous. Antagonizing the officer invites problems. Hand the officer your driver’s license and proof of insurance. Do not admit guilt, apologize, or volunteer information. This is not the time to beg your way out of a traffic ticket. If you are questioned, respectfully inform the officer that you will not answer any questions without an attorney present. When he finishes writing the ticket/warning, ask whether you are free to leave.If you are free to leave, thank your lucky stars that you have not learned your lesson the hard way and be on your way – carefully and lawfully. In the future, choose the safer route by not driving after drinking and avoid all this stress. If another person in the car is capable of driving and hasn’t been drinking, let him drive. If you are told you are not free to leave, immediately request an attorney, terminate the interview, and remain silent.
Most criminal defense lawyers offer a “free consultation”. That term doesn’t have a strict definition, and its meaning may vary dramatically from lawyer to lawyer. It may not be what you think it is.
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