Posted by Mike (WA) on January 16, 2012 at 15:12:05 from (174.31.215.223):
In Reply to: Re: OT Gvt run amuck posted by mkirsch on January 16, 2012 at 13:09:42:
Actually, its a pretty smart thing to say, if he doesn't put you under arrest immediately, and just keeps asking questions.
Reason- he has to have evidence, and probable cause, to arrest you, and if he does, he has to "Mirandize" you (you know, right to remain silent, etc.). But he can work up some evidence without the Miranda warning, if you are willing to shoot off your mouth. But he won't arrest you without probable cause, even if you dare him to. But even if he has you in the back of the patrol car while asking questions, courts say you still are "free to go" (so you can still incriminate yourself), even though it doesn't seem like it, because you could have just asked.
So if he's asking a lot of questions, he's probably "fishing", and doesn't have grounds to arrest, because if he did, he'd have arrested you right off the bat. By asking if you are "free to go" before you talk too much, you may just do yourself a favor.
The exception: If he comes upon you in a parked car, and you are obviously intoxicated, he will not have probable cause for DUI, because he didn't see you drive. So he will ask some questions, then say you are "free to go". Don't go. If you do, THEN he'll have you for DUI, because he knew you were drunk, and all he needed was the driving.
Note that answering questions, especially if you are intoxicated, is a bad idea. Even if you don't incriminate yourself with the content of your answers, there isn't a cop alive who won't say your speech was slurred, and court can infer intoxication just from that. You can just decline to answer questions, and you can decline to do the physical tests. Just don't decline the breatholyzer.
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