DWI accident case. Poor quality video, officer has microphone problems throughout video. At beginning of video, officer asks D about drinking facts as well as whether intoxication was factor in accident but D's part of conversation is mostly not caught on tape due to officer's mic cutting out/static. After moving D one block to safe location for FST's, and going through full FST's, officer cuffs D and reads DIC. Officer then calls DA intake to get charges accepted, which are not accepted at that time(likely due to inexperienced officer). DA at intake requests that officer ensure that drinking facts captured on video, so about 15 minutes later officer takes D back out of vehicle, still in cuffs.
Officer then asks D to confirm drinking/crash facts, without Mirandizing D, which this time (amazingly) are all audible and great admissions against D. Officer calls back to intake and charge is accepted.
This last questioning is approximately 45 minutes into the investigation, after all FST's, DIC read, and D had been sitting in back seat of patrol car for about 15 additional minutes.

Issue 1: whether D is still merely detained (and not under arrest) at the time of the second "re-do" interview.
Issue 2: If D is under arrest at the time of the second interview, is there any way to use the non-Mirandized statements taken which corroborate (greatly) the officer's preliminary conversation with D? The second series of questions are the only ones that contain audible answers by Defendant.
Thanks for any feedback.

I'm not a lawyer but I wonder if Code of Criminal Procedure Art. 38.22 is relevant to this inquiry.

Alex - that's exactly his question - does that statute apply under these facts.

As far as my professional opinion (as a former prosecutor and college criminal procedure instructor) - it quacks like an arrest even if the prosecutor said no charges at that time, for the following reasons:
(1) the investigation was already complete by the time the officer handcuffed the defendant and then called the DA;
(2) the "additional" information was essentially the same as the original information, which did not further the investigation itself (the length of detention may be beyond the reasonable scope of a detention if you have to do it twice);
(3) the scope of a detention generally does not include handcuffs and placing someone in the back of the patrol car for an additional 15 minutes while no investigation is being conducted, unless there is a strong showing of a need for those actions for purposes of officer safety (I assume those facts are lacking in this case);
(4) the reading of the DIC-24 states that a person is "under arrest" - and that language has cut both ways in many cases, in this case, against you;
(5) the officer's subjective intent to arrest (only part of the equation, but still considered) seems obvious from his actions in using cuffs and taking defendant to the patrol car, reading the DIC-24, and calling the DA.

As far as using the non-Mirandized statements, if the court determines that he was in custody, Miranda applies and you can generally only use them to impeach the defendant if he testifies differently from his statements. If the defense attorney attempts to make a false impression of the pre-arrest statements (e.g., suggesting that his client never really told the officer those things at all during the initial investigation), perhaps if it is apparent from the audio that it is a second interview with the same or similar questions, you could argue to use them for rebuttal that they are a consistent statement (albeit not "prior" consistent statement) and that the attorney is attempting to leave a false impression with the jury. That being said, I would be prepared for them to be excluded and hope that your jury believes your officer regarding the statements made during the initial investigation. Yours would not be the only video that lacked audio during the roadside detention, and for which the case comes down to officer credibility.

Alex, the discussions in these user forums are for the benefit of prosecutors and their staff members, although we welcome relevant and appropriate input from other members of the criminal justice and government lawyer community.

Definitely officer credibility will be critical. I've just never encountered the particular circumstance with the duplicate questioning, the first part that you can't hear (though clearly admissible) and the second that you can (on the same tape, nonetheless). Thanks for your thoughts.

I'm sorry for the stupid question.

I enjoy your posts, Alex. Sometimes they are a little off point, but so what? Sometimes they hit the nail on the head.

What I don't understand is why you obviously enjoy mixing it up with us. If one is not a prosecutor, or at least a defense atty., I'd think you'd find this forum rather dull. I guess I'm rather flattered that someone from a totally different background cares to participate in this forum.