Can they drop the charge if she was not read her rights?

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Can they drop the charge if she was not read her rights?

I got pulled over for no tag on a trailer that we just bought. An officer pulled us over and as soon as he got to my window, he said he smelled marijuana and said that if we complied that he would be lenient. My wife took a small container out of a bag and showed him the 15 grams of marijuana. He asked her to get out of the car and told her she is going to jail for possession. They didn’t read her any rights and just handcuffed her. She has a clean record and never been in this situation. She doesn’t have a marijuana card although she applied for one now. She spent 1 night in jail and she has a court date this week.

Asked on February 24, 2019 under Criminal Law, Florida

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Many are under the misconception that any time a person is placed under arrest they must be read their Miranda rights. Actually, this warning must only be given if a person is arrested and then questioned. In other words, merely being arrested does not trigger the warning. That having been said, once a person is in custody and subsequently questioned without being Mirandized, then any statements they made cannot be used against them. The 2 exceptions to this are: that the suspect "waived" their rights (i.e. they were voluntarily and knowingly made anyway) or the questioning was incidental to the booking process (i.e. they were asked for their name, address, birth date, etc.).

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Many are under the misconception that any time a person is placed under arrest they must be read their Miranda rights. Actually, this warning must only be given if a person is arrested and then questioned. In other words, merely being arrested does not trigger the warning. That having been said, once a person is in custody and subsequently questioned without being Mirandized, then any statements they made cannot be used against them. The 2 exceptions to this are: that the suspect "waived" their rights (i.e. they were voluntarily and knowingly made anyway) or the questioning was incidental to the booking process (i.e. they were asked for their name, address, birth date, etc.).


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