“In Custody,” Miranda, and Felony DUI Investigations
In State v. Barksdale (no, not that Barksdale), the SC Court of Appeals held that a felony DUI suspect was not “in custody” for purposes of Miranda, even though the officer smelled alcohol, knew Barksdale was driving the vehicle, there were beer cans in and around the vehicle, the officer had told other officers not to let Barksdale leave, and Barksdale had “failed” the officer’s roadside field sobriety tests.
If Barksdale was not in custody, the officers didn’t need to read his Miranda rights to him before interrogating him. But was he in custody?
Of course, he was – he was not free to leave and no reasonable person would have thought they were free to leave under the circumstances. If he did try to leave, we’d probably be talking about a police shooting instead of an appellate opinion about Miranda rights…
Was the Court of Appeals wrong when they found he was not in custody? Not necessarily, because they were following prior SC appellate opinions that carve out a DUI exception to the Constitution.
Are You “In Custody” During a DUI Traffic Stop?
According to the appellate courts, you are probably not in custody during a DUI investigation unless the police have you on the ground in handcuffs.
How is that so? If you are surrounded by police officers who are going to arrest you, and you are not free to leave, how is that not “in custody?” The courts arrive at this conclusion by creating “legal fictions” to justify your interrogation on the roadside without Miranda warnings.
A “legal fiction” is a euphemism for when courts lie to achieve the desired result – you are “free to leave” during a police encounter, even when it is painfully obvious that you are going to be cuffed and arrested.
What do I mean? Let’s take a look at the court’s reasoning for finding that Barksdale was not in custody.
The Officer’s “Subjective Intent” Doesn’t Matter
The trial court suppressed Barksdale’s statements, finding that he was in custody and therefore the police were required to read his Miranda rights to him before questioning, because:
- It was clear that the officer smelled alcohol on Barksdale,
- The officer never advised Barksdale that he was not in custody,
- Once the officer smelled alcohol, he was not “in any position to allow Mr. Barksdale to leave the scene,” and
- The officer told other officers on the scene not to let Barksdale leave.
The Court of Appeals reversed, agreeing with the state’s argument that the trial judge improperly relied on the officer’s “subjective intent,” and finding “a reasonable person in Barksdale’s position would [not] believe he was in custody.”
They are wrong, of course. A reasonable person in Barksdale’s position would have believed that they were in custody. In fact, it would be unreasonable for any person to not think they were in custody at the point where the officer began interrogating Barksdale. Would you have thought it was okay to just walk away under the circumstances?
The trial judge knew that a reasonable person would consider themselves in custody. The Court of Appeals should know that a reasonable person would consider themselves in custody. But their decision is in line with previous appellate decisions where the courts have stretched the truth and engaged in a “legal fiction” that suspects who are detained on the side of the road, surrounded by evidence that they were driving while intoxicated, and who are not free to leave, are not actually in custody.
Prior SC Cases Holding a DUI Suspect is Not “In Custody”
In State v. Kerr, the Court of Appeals found that a DUI suspect was not in custody for purposes of Miranda where:
- There was an auto accident on the interstate,
- The defendant was placed in the back seat of a patrol car, and
- There was a “strong smell of alcohol” coming from the defendant.
It was nothing more than a “routine investigation into the cause of a traffic accident,” the Court of Appeals said.
In State v. Morgan, the SC Supreme Court held that a defendant was not in custody where:
- Defendant was racing another car and the other car crashed,
- Defendant left the scene but then returned, and
- Officers interrogated Defendant before arresting him.
Barksdale’s case goes a bit further, however – the officer did not tell Barksdale he was not under arrest, he told the other officers to prevent Barksdale from leaving, and Barksdale “failed” field sobriety tests before the officer interrogated him.
In every DUI case in SC, the officer must advise the suspect of his Miranda rights on the video before the suspect is arrested. If the officer does not, the case gets dismissed.
You can’t interrogate a suspect, then Mirandize them, and then interrogate them again. Despite this, the Court of Appeals is giving police permission to wait before arresting a DUI suspect, interrogate them, then Mirandize and arrest them.
Prior SC Cases Finding a DUI Suspect is “In Custody”
SC’s appellate courts have decided cases where a suspect was in custody and should have been Mirandized before questioning. For example:
State v. Medley: the SC Court of Appeals held that a suspect was “in custody” when officers pinned him to the ground in handcuffs,
State v. Ledford: the Court of Appeals found that a suspect was in custody when the officer “carried the suspect from the suspect’s home to the patrol car and questioned the suspect as he propped him against the car to handcuff him,” and
State v. Newell: the Court of Appeals found that a suspect was in custody when she was in the police car on the way to the jail after officers had arrested her.
So, if you are going to be charged with DUI, you are not considered to be in custody for purposes of Miranda unless you are pinned to the ground in handcuffs or on your way to jail after you’ve been arrested…
Why Barksdale was not In Custody (According to the Court of Appeals)
Why wasn’t Barksdale in custody according to the Court of Appeals?
- He was interrogated in public, surrounded by police officers and some civilians,
- Although the officer told other officers not to let Barksdale leave, Barksdale didn’t hear it,
- Even if Barksdale did hear that he wasn’t free to leave, the Court says a reasonable person still would have thought they were free to leave (p9),
- Barksdale was not “deprived of his freedom of movement in any significant way or detained in such a way as to mimic formal arrest,”
- He was not placed in handcuffs until after he failed the field sobriety tests (although the officer also did not interrogate Barksdale until after the FSTs), and
- The officer was only conducting a routine investigation of a traffic accident.
No reasonable person would think they were free to leave under Barksdale’s circumstances. If Barksdale had attempted to leave, he would have immediately been handcuffed and placed in the patrol car – or shot.
It was not a “routine” traffic accident. It was a felony DUI investigation, and everyone on the scene knew that Barksdale was going to be arrested.
The Court says that Barksdale wasn’t handcuffed until after he failed the field sobriety tests. That’s misleading because they also say that:
Immediately after concluding the tests, Officer Craven asked Barksdale to rate his current sobriety on a scale of one to ten, with ten being the most inebriated Barksdale had ever been prior to that night. Barksdale responded, “I wouldn’t say I’m drunk. But I’d say [about] five.” Officer Craven then asked Barksdale if he could feel the effects of alcohol, and Barksdale responded “yeah, I can feel that.” Officer Craven then placed Barksdale under arrest for driving under the influence of alcohol and Mirandized him.
Barksdale was not questioned, then given the field sobriety tests, and then arrested because he failed the FSTs. After the field sobriety tests, the officer immediately began interrogating Barksdale. After asking Barksdale a series of incriminating questions, the officer put the handcuffs on him, and then the officer Mirandized him.
The Court of Appeals, the trial judge, Barksdale, and “a reasonable person” should know that Barksdale was not free to leave and that the only reason the officer did not Mirandize Barksdale is that he did not want Barksdale to assert his right to an attorney or his right to remain silent.
DUI Defense Lawyer in Charleston, SC
Charleston, SC DUI defense attorney Grant B. Smaldone focuses his law practice on criminal defense and DUI defense. Because we don’t spend our time handling car wrecks or divorces, our attention is not divided between different areas of the law, we try more cases, and we feel that we are able to do a better job for our criminal and DUI defense clients.
If you have been charged with DUI, DUAC, or any DUI related offense in the Charleston, SC area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or contact us through our website to talk to a Charleston, SC DUI defense lawyer today.