Miranda rights and mind-alterating substances

If someone is so drunk that they don’t know a civil right from a hole in the wall, can they truly give consent to being questioned? Can they give consent to being searched?

A “Terry Stop” is when you are not under arrest but the officer is questioning you “for the public safety.” If during the Terry Stop your answers indicate public drunkedness then that is evidence for the arrest. After the arrest they can legally search you and not just “frisk for weapons.”

I am not an lawyer but I play one on the Internet.

The answer is, generally, no – the decision to waive rights must generally be freely,voluntarily, and intelligently given, and the burden is on the government to show, by preponderance of the evidence, that it was in fact freely,voluntarily, and intelligently given.

There are several errors in the statement above.

A Terry stop is not correctly described as an officer questioning you ‘for the public safety’. A Terry stop is a brief, investigative detention that falls short of an actual arrest. Unlike an arrest, which must be predicated on probable cause, a Terry stop is premised on reasonable, articulable suspicion.

The OP asks about a waiver of Miranda rights, which is required before any questioning in a custodial setting is admissible as evidence. While a formal arrest is not an absolutely necessary predicate for custodial interrogation, it’s fair to say that as a general rule, the question of Miranda waivers is seldom antecedent to arrest.

What does “articulable” mean, legally, in this context?

More than just a general suspicion or a hunch; something the officer can state with a degree of particularity as justification for the stop. “And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968).

When I got arrested for being drunk, they wouldn’t let me do anything except sit in a cell until I blew under a .08. Once I did that, they handed me a sheet with my miranda rights, I signed it and then they let me see the commisioner to set my bail.

Another error in your statement is saying that being drunk is in itself reason for arrest. It might be in some places but not everywhere.

I’m reminded of Ron White’s comedy routine where he tells of the time he was arrested in a bar. “I had the right to remain silent, but I did not have the ability.”

Where is public drunkenness not illegal?

Can the cop be required to articulate those suspicions before having to present ID as is required in some states “for the public safety?”

Just the fact that your BAC is above .08% will not get you arrested in New Jersey. If you are causing a ruckus you can be arrested for disorderly conduct. Of course if you are driving you will get a DWI. Just being drunk is not a crime.

You mean does he have to tell you? No.

No. If I understand your question, the issue of whether the requisite “reasonable, articulable suspision” existed is resolved by the court. The detained individual cannot require the officer to explain his reasons first.

Again you use the phrase “for the public safety” as though it has some special meaning. So far as I am aware, it does not.

It’s true that during a Terry stop, if the officer has reason to believe his safety is at issue, he may briefly ‘pat down’ the detained indivdual, checking the outer surfaces of clothing for any indications of weapons. This is done for the particular officer’s safety, which is, I suppose, related somewhat to “public safety.”

Bricker, could you elaborate on this a bit?

Specifically, I’m wondering what argument the defense could make that wouldn’t just incriminate the defendant. If the officer claims that the defendant appeared intoxicated, and when informed of his rights agreed that he had been drinking, the defense can hardly claim “But, he was too drunk to know that his rights had been read.” That might make the results of the interrogation inadmissable, but the defense has now claimed exactly what the prosecution was trying to proove, right?

This is assuming that the crime the defendant is accused of is of taking the mind-altering substance in the first place. I can see how one could get out of confession for another crime based on being unable to consent to questioning at the time of interrogation.

The OP asked:

I took that to be inquiring about a general crime. If you’re hauled in to discuss the murder of your rich uncle, and you slur out a confession, you would obviously have an interest in claiming that your Miranda waiver was defective because you were sloshed at the time you gave it.

If you are arrested because of your drinking, then, as you say, it doesn’t help you to argue that your Miranda waiver was unreliable because you were drunk. But as a general proposition, if you’re arrested for an offense for which intoxication is an element, your un-Mirandized confession of intoxication isn’t usually key; there is usually sufficient evidence without your words.

I have a related question on DUIs.

We do the legal blood draws for all of our police departments. Part of the process is that the subject has to sign a consent form for blood to be drawn. Now these people are almost always showing clinical signs of intoxication and wouldn’t be considered competent to refuse medical care. How can they then consent to a blood test?

Proabably the way your state’s implied consent laws are written; remember, they don’t want it so they can administer medical care, they want it as evidence to use against the arrestee in a criminal proceeding. In my fair state, if you are arrested for DWI you are deemed to have consented to the taking of one or more specimens of your breath or blood just by the act of operating your vehicle. The onus isn’t really on them to get your consent, it’s on you to refuse if you want to withdraw that implied consent. If you’re so intoxicated that you’re incapable of refusing, you’re out of luck - you have to make an actual refusal.

I see what you’re saying, and part of the standard cop spiel is “By driving in the State of Colorado you have consented to…” and so on. However, the form that goes with the specimens does have to be signed showing that they consent to the test. Also, IME, someone who doesn’t respond is considered by the police to have refused the test.

Washington state does not have any type of “drunk in public” law. You can be arrested for things you do because you’re drunk, but not solely for being drunk.