Legal Question in DUI Law in North Carolina

must my miranda rights be read to me if i receive a dwi charge, although not taken into custody? rather, i was taken to the hospital due to automobile accident (and subsequent dwi), where blood was drawn to determine blood alcohol count. also, protocol states that the chemical analyst who took my blood must be sworn/affirmed by magistrate or notary, and inform me orally AND in writing of the rights specified in G.S. 20-16(a). No such form was ever provided to me, nor was it attached to the form as stated. the hospital indicated they do not have a magistrate, and i do not believe one was called period, despite the non-legible scribble scrabble on the form stating one was. what can i do, as i attempt to challenge the integrity of the blood alcohol count in terms of protocol in a court and before a jury?

Asked on 11/03/11, 8:09 am

1 Answer from Attorneys

Clarke Dummit Dummit Fradin (Winston-Salem Office)

The simple answer is that the State is never required to read you Miranda Rights. It is merely a prerequisite before they interrogate you will you are in custody. While your Post indicates, you did not think you were in custody, you were actually arrested then released (more than likely), and thus you were actually in custody for Miranda purposes.

Under NCGS 20-16.2 you do have to be given a copy of you Implied Consent Rights prior to the blood being drawn. The magistrate is usually located at the Detention facility in most counties, but this can vary. There is not a requirement that the Notice of Right form be notarized or done before a magistrate. However under 20-16.2 and 20 16.5 the Revocation & Affidavits regarding the Revocation which support the magistrate’s revocation must be done before the Magistrate, but in a blood case there should not be any of these documents until the results are returned from the SBI lab.

But you question raises more complex issues, and you need a good DWI attorney. You may well have very good issues to suppress the results based upon the procedures that were used, chain of custody, as well as other procedural issues such as a motion at the close of the evidence based upon Corpus Deleti.

We have not opened an Office yet in Raleigh (coming spring 2013) but if you call our office someone can help find an attorney in that area who understands the complex issues.

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Answered on 11/12/11, 7:18 pm

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