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Marsha411JD, Lawyer
Category: Criminal Law
Satisfied Customers: 19673
Experience:  Licensed attorney with 29 yrs. exp. in criminal law
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I was arrested for a DWI on November 8th at 12:07 am 2010.

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I was arrested for a DWI on November 8th at 12:07 am 2010. When I went to trail on the District court level the DA made a motion to amend the charging document to November 7th at 11:37 pm 2010. I was found sitting behind the wheel of a vehicle with no gas on the side of the road and 11:37 pm was the time the state trooper pulled behind me and turned on his blue light, so the DA is charging me at the time I was seen in the vehicle. So in effect by amending the charge time I am now charged with a crime prior to the officer obtaining anything from me that a crime had occurred. My question is this. Since I am being charged at 11:37 pm does the 6th amendment (right to an attorney) attach at that time and they would have needed a 6th amendment waiver that I was waiving my right to an attorney? ( I know this is a little different from Miranda). I was not read my Miranda rights until I was arrested at 12:07 pm and I did not waive them. It seems from my research that when a formal charge (now charged at 11:37pm on November 7th) is made against someone than the government official must abide by the 6 amendment prior to questioning the individual charged. Also, do you have any idea why the DA would amend the charge in the first place. Is it because the investigation started the day prior?

Thank you for the information and your question. There is no 6th Amendment right to an attorney or to remain silent until a suspect has been arrested. Merely being a suspect is not enough in the civilian setting (different rules for military cases.) So, until the arrest was made, you would not have had a right to be advised of your Miranda Rights, which do include both the right to an attorney and the right to remain silent.

All that said, unless you are going to be questioned after you are arrested, there is no requirements that your right to remain silent be given to you via Miranda Rights. It is a standard procedure, but there is no law that says that absent questioning Miranda warnings must be given. The only consequence of not giving Miranda Rights and/or right to remain silent and to ask for an attorney, is that any incriminating statement made by the arrestee cannot be used against them at trial.

As for the correction of the date and time, they just likely reviewed the evidence and saw that the amended time more correctly reflects when you were discovered in your vehicle, which is the correct time to use and not the time you were arrested. That is necessary, as that is the time that is used for purposes of the speedy trial rules and also the statute of limitations. So, it works better for you since it pushes the time back and theoretically puts more pressure on the State to file charges and get you tried.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
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