The requirement for the police to read "rights" -the Miranda decision- is very frequently thought to be the silver bullet that is going to kill the government's case. Not so. An officer's failure to read Miranda rights very rarely has any effect on a D.U.I. at all, and almost never does it result in a dismissal of the charge. Here's why.

The Miranda decision holds that if a person is being subjected to custodial interrogation, that interrogation must be preceded by "the rights", or the answers may not be used in court. For the Miranda decision to apply, you must therefore be "in custody". Being investigated along the roadway prior to arrest is not considered being in custody for Miranda purposes. Even if you are in custody, Miranda only applies to answers given in response to direct police questioning, so that volunteered statements are not subject to Miranda.

In a typical D.U.I. case, if everything the driver said was thrown out -for violation of Miranda or any other reason- the government would still have the observations of driving, the contact between the officer and the driver, the field sobriety test results, and the breath test. In other words, the government's case would hardly have received a blow.

"But I was the designated driver"

You would likely be amazed how frequently I am told by a client -or even more likely by his/her parents- that the charge just isn't fair because they were the designated driver. I could almost hold myself out as a "specialist in representing designated drivers"!

The campaign to designate a sober driver is a good one. It has been hugely successful and has probably saved lives, not to mention D.U.I. charges. Unfortunately, the designated driver is too often merely the "least" drunk in the car. Being designated the driver is only a good idea if you are not remotely affected by alcohol. Otherwise, you simply become the D.U.I. driver!

"I've never been in trouble before"

The legislature set "mandatory minimum" punishments for D.U.I. These punishments are "in stone". In other words, the only way you may avoid them is by avoiding a finding of guilty. If you have previously been found guilty of D.U.I., the punishments are dramatically higher. Once in a particular punishment category, there is virtually no wiggle room for the judge, at all.

Let me give you an example. Let's say two persons are first offenders with .12 breath test readings. One of them is 18 years old, single, and walks 2 blocks to his part-time job at McDonald's each day. The other is a commercial truck driver, married with a wife, a mortgage, and 3 children for whom he is the sole source of support.

The legislature -in its infinite wisdom-has denied the judge any leeway between one and the other. They will robotically both be sentenced precisely the same. This is so even though the effect on the one is only a major pain, expense and inconvenience while the other loses his job, probably his house, his child's medical insurance and eventually even his marriage. "Mandatory" means mandatory.

"I wasn't drunk; just a little buzzed"

The State's burden is to prove that you were "affected by" alcohol (or any drug) to "any appreciable degree". "Drunk" is not required. While D.U.I. cases sometimes, of course, involve one who was drunk, they more typically involve a state of sobriety that it less clearly intoxicated, but nevertheless guilty under the statute.

"My reading was below a .08"

Most D.U.I. cases are, of course, above a .08. But, the.08 level is not required to be charged or to be convicted. Nearly any breath test reading may be used to assist the State prove that you were affected by alcohol. In fact, no reading is required, at all.

Perhaps most instructive is this true story. Several years ago I was contacted by a man who was charged with D.U.I., but only had a .07 breath test reading. He understandably was confused as to why he was charged, since his reading hadn't hit an .08. He especially found it unbelievable that he needed a lawyer. At the end of my advice to him, he asked "Would I be a complete fool to simply represent myself". I advised him that in my opinion he would not be a complete fool for doing so; just the ordinary kind".

This well-meaning man decided to go it alone, and I was later astonished to find out that he even brazenly went through a jury trial by himself! It was no surprise that he was found guilty. I found this out because about 6 months later he called again and told me. He called me again because he had again been charged with D.U.I. This time his reading was only a .04!! (The officer "ran his record", saw the old D.U.I., and so resolved all doubts in favor of writing him up.

This time he had learned his lesson, and retained counsel (me), even though his breath test reading was only half the legal limit. Good thing, as it turned out, because in an unusual move the prosecutor took the case to a jury trial! We won the trial, but the story is not over.

A month later I received yet another call from this poor man. This time he was facing a probation violation. The violation was that since he had a .04 breath test (on the case he won), he was in violation of the terms of his probation for the case on which he had represented himself. Since he represented himself, and didn't know better, the sentence included a provision he couldn't drink alcohol!

Now, he came out of the probation violation hearing, too. But, the moral of the story is that he almost certainly would never have had a conviction on the first one if he had retained counsel. Because he wouldn't have had a conviction, he almost certainly would never have been charged with the second (.04) D.U.I. and would never had to spend the money and take the time and undergo the stress of a jury trial. Finally, he would never have faced a probation violation, since he wouldn't have been on probation, much less prohibited from drinking. So, one can only guess at the number of thousands of dollars this poor fellow saved by representing himself!

"It wasn't alcohol; it was a prescription from my doctor"

Doesn't make any difference, at all. The D.U.I. statute applies to any affected driving whether the affectation was from alcohol or any other drug. In fact, drug D.U.I.s are in many cases more difficult. This is because they usually involve blood testing rather than breath testing, and blood testing is a more accurate forensic procedure. Moreover, there is no set .08-type level. The result is that the government is able to argue that any amount at all is guilty.

"I was in my driveway"

D.U.I. can be committed anywhere in the State of Washington. It does not need to be on a public highway.

"You can't win a D.U.I."

This is my personal favorite, especially as it is an expression I often hear even from lawyers who represent people on them!

It is absolutely not so. There is no question, however, that it is not an Easter egg hunt for the feint-hearted. The government is quite serious and dedicated to D.U.I. law enforcement. D.U.I. law changes constantly and it never changes in ways that favor the accused drunk driver.

A "Mickey Mouse" defense is just a slow plea of guilty. If you are charged with D.U.I., half-way measures are a waste of time and effort. You must either take out your sword and attack the 3-headed dragon straight-on…or just fall on your sword and plead guilty.