If blood is withdrawn before Miranda rights or without the consent of the offender, can the BAC be admitted in court?

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If blood is withdrawn before Miranda rights or without the consent of the offender, can the BAC be admitted in court?

Asked on August 20, 2011 New Mexico

Answers:

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

Answered 10 years ago | Contributor

First of all, the Miranda warning has to do with statements made by the offender, not blood tests (although they both can be used as evidence). And contrary to popular belief, an arrest does not trigger the necessity of being read your rights. Rather, it is a "custodial interrogation" (e.g. arrest followed by questioning) regarding the incident. So if you were arrested but not questioned or arrested but only asked questions incidental to the booking process (name, address, etc), you need not have been read your rights.

However, as to the lack of consent regarding your blood draw, NM law does not allow law enforcement to take a blood draw without the suspect's consent (although a blood draw may be taken upon the issuance of lawful search warrant). Accordingly, a suspect may not be forced to submit to a blood draw.

At this point, you should consult directly with a DUI attorney in your area.


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