Posted on 10/26/2001 2:39:54 PM PDT by marktwain
DON'T BE YOUR OWN WORST ENEMY!
I cringe to think how many times clients come into my office to discuss their criminal matter with me only to learn they have done possibly irreparable damage to their case. I have found few people who are aware of their constitutional rights.
Your awareness of some simple concepts may serve you well in the event you or a loved one is the unfortunate subject of a criminal investigation. First of all, always remember, you are not required to talk to the police. There may be occasions where your persuasive oral skills will serve to get you a stern warning instead of a costly ticket; however, talking with the police will rarely benefit you when the investigation is for a crime.
In addition, talking to friends and family about your criminal matter is usually not a good idea either. Although you do not expect a friend or family member to compromise your case, you may put him or her in an unfair position. A prosecutor may summon you family member or friend to the witness stand in a criminal trial and ask questions about your statements. Such a delemma will force your family member or friend to decide between perjury and possibly hurting your case.
Don't get caught up by the fact that the police officer failed to inform ou of your "Miranda Rights". These are your rights to remain silent and to have an attorney present during questioning. So long as you are not under "arrest" the police officer may properly ask you questions without informing you of these rights.
You are never required to consent to a search. If a police officer has a search warrant, you must permit the search. However, if a search warrant has not yet been obtained, you should insist the officer obtain one before you voluntarily allow a search. The fact that you insist upon a search warrant does not mean you have something to hide. Rather, it is a confirmation of the constitutional concept that the police do not have the right to arbitrarily conduct searches of your property.
A police officer has no right to detain you unless there exists reasonable suspicion that you committed a crime or traffic violation. However, a police officer is always allowed to initiate a voluntary conversation with you. Sometimes it is unclear whether or not a person is detained. If you are in doubt, you should ask the police officer if you are in fact free to leave.
If you are arrested, Arizona law mandates that you will be brought before a judge within twenty-four hours. This is an important hearing for you. The judge will decide what conditions, if any, must be met before you can be released from jail. You have a right to retain an attorney for this hearing to argue for your release.
Regarding the crime of driving under the influence of alcohol, the best advice is to have a designated driver. However, if you are the subject of a DUI investigation, you must be especially careful and thoughtful about what you say and do. In Arizona a conviction for DUI guarantees a jail term.
Arizona law does not require you to submit to roadside filed sobriety tests. Although these tests may assist you to convince an officer you are not intoxicated, as a general rule, refusing to take the tests is the better choice. Keep in mind, it is the police officer who subjectively decides whether you passed or failed the tests.
DUI is a complex and continually changing area of the criminal law. However, like other criminal charges, the decisions you make during your initial contact with a police officer can be the difference between conviction and acquittal.
(Marc J. Victor is a partner in the law firm of Victor & Hall, P.L.C. and a crertified specialist in criminal law.)
One thing Mark didn't stress enough (IMHO) is the field sobriety test. In AZ it IS optional (the breathalizer is mandatory if "requested" by the officer), as well as the officer's opinion most of the time the film will be submitted to the jury (remember the vast majority of cops now have automatic cameras on the dash and are wired, assume everything you do is recorded). But the important thing to note about AZ's field sobriety test is that it is pretty much unpassable. If you spend time in the right places you can usually get a chance to "try out" the sobriety test (police info fairs are good, check your local community college event calendar). I did ours once. Stone cold sober, middle of the day, not tired or hungry or anything; failed misserably. It's a series of motor skill, reflex and memory/ cognitive tests. The killer is usually the last part, they ask you stuff from your drivers license, what day it is (frequently a killer if you're out past midnight) and a few other tricky questions. Getting them wrong, OR taking "too long" to answer will get you nailed.
Remember that, if pulled over for DUI in AZ (or anyplace else where the field sobriety is optional) DO NOT take the exam, you are almost garaunteed to fail intoxicated or otherwise. Failing the field sobriety will kill your case pretty much regardless of the breathalizer.
I will not answer any questions without an attorney present.
I will not submit to any type of sobriety testing until I have spoken to an attorney.
I do noct consent to any type of serach of my person, vehicle or premises.
I insist that you inform em immediately as to when I am feee to leave.
If you arrest me, I demand taht you attache aphotocopy of these statemenst to any Police Reports(s) that are created.
If up perform any analysis of my blookd, breath or urine, I demand that right to obtains an independent test of my choosing at the earlieset opportunity.
do not ask me to do anything which is contrary to these statements.
Signed
My attorney's phone number is _____________________
end
I'm going to have to ask you to take a sobriety test...
(A west suburbs bump to you, btw)
NOTICE TO OFFICER:
Please keep this official notification for your records.
1. I herewith tender my driver's license and proof of insurance.
2. If I am not in custody, I understand that I do no have to answer any questions or volunteer any information. Therefore, I choose not to make any statements or answer any questions. Furthermore, I choose not to take any voluntary roadside field tests, eye tests, etc. or any handheld Alcosensor breath tests.
3.I have committed no crime and respectfully request that my drivers's license, insurance card, and any other of my documents, in your possession be returned to me immediately.
4.If I am not allowed to leave at this time, I will assume that this more that a bried investigatory stop and that I am in custody (under arrest). I therfore invoke my RIGHT TO REMAIN SILENT , including my right to not to take any of the aforementioned roadside field sobriety evaluations.
5 Without waiving any deficiencies in the statutory procedures or the implied consent notice, I HEREBY CONSENT to any official state tests of my blood, breath, urine or ther bodily substance.
6. I further request that I be allowed to take an independent test at a private medical facility by personanel of my own choosing and at my owne expense.
7. I DO NOT CONSENT TO A SEARCH of my person, my vehicle, or any property.
8. I INVOKE MY RIGHT TO A LAWYER and rest that I be allowed to call my attorney ___________________ at _____________.
I can't do it if to save my life, and I haven't had a
drink in over 20 years.
In Massachusetts the field sobriety test is optional as well. However, if you opt not to take the test, you are automatically rewarded with a 120 day driver's license suspension. Nice.
This is a tricky area. If the police stop you for a traffic violation, you are indeed under arrest until he releases you. I advise my friends and family, NEVER volunteer any information to the police for which there is the remotest chance that you are a suspect, and before you answer ANY questions, ask him if you are under arrest or if you are under suspicion for any crime. If the answer to either question is yes or if you just don't like the direction the questioning is taking, SHUT UP NOW!
It is never too soon to exercise your rights.
If you answer "yes", that proves you are impaired and unable to make proper judgments.
If you answer "NO", well you just indicted yourself.
Good observation. I should have said that myself.
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