Mr. Dawson has worked as a contract attorney for the Imperial County court system on misdemeanor appeals for a number of years. We also have experience with drunk driving cases and traffic infractions.
Articles:
Police Questioning: When Miranda Warnings Are Required
Criminal Procedure FAQ
Drunk Driving, DUI, and DWI FAQ
Police Questioning: When Miranda Warnings Are Required
© 2009 Nolo
What really happens if the police fail to read a suspect his rights.
Many people believe that if they are arrested and not "read their rights," they can escape punishment. Not true. But if the police fail to read a suspect his or her rights, the prosecutor can't use anything the suspect says as evidence against the suspect at trial.
Miranda Warnings
Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), a defendant's rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
* You have the right to remain silent.
* If you do say anything, what you say can be used against you in a court of law.
* You have the right to consult with a lawyer and have that lawyer present during any questioning.
* If you cannot afford a lawyer, one will be appointed for you if you so desire.
* If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
When the Miranda Warning Is Required
It doesn't matter whether an interrogation occurs in a jail, at the scene of a crime, on a busy downtown street, or the middle of an open field: If a person is in custody (deprived of his or her freedom of action in any significant way), the police must give a Miranda warning if they want to question the suspect and use the suspect's answers as evidence at trial.
If a person is not in police custody, however, no Miranda warning is required and anything the person says can be used at trial if the person is later charged with a crime. This exception most often comes up when the police stop someone on the street to question him or her about a recent crime or the person blurts out a confession before the police have an opportunity to deliver the warning.
Pre-Arrest Questioning
People are often surprised to learn that if a person hasn't yet been arrested, the police may question the person and use the answers in court without first providing the Miranda warning.
Responding to Questions Before an Arrest
Does a person have to respond to police questions if he or she hasn't been arrested? Generally, no. A police officer generally cannot arrest a person simply for failure to respond to questions.
The Fifth Amendment to the U.S. Constitution guarantees the "right of silence." This means that unless a police officer has "probable cause" to make an arrest or a "reasonable suspicion" to conduct a "stop and frisk," a person approached by the police officer has the legal right to refuse to answer questions. Indeed, a person who has reason to believe that he or she is a potential suspect should politely decline to answer questions, at least until after consulting an attorney.
However, there are several exceptions to this rule.
Loitering. The "right to silence" rule may not hold true if the officer suspects the person of loitering. Laws in effect in many states generally define loitering as "wandering about from place to place without apparent business, such that the person poses a threat to public safety." Under these laws, if a police officer sees a person loitering, the officer can demand identification and an explanation of the person's activities. If the person fails to comply, the officer can arrest the person for loitering.
Traffic stops. Another situation where answers to police questions are usually required is when drivers are stopped for suspected traffic violations. An officer has the right to demand personal identification -- usually a driver's license and the vehicle registration. A driver's refusal to supply the information elevates the situation to a more serious offense, for which the driver usually can be arrested. The simple refusal to answer questions is not a crime, but the refusal to supply identification, combined with the suspected commission of a traffic offense, is.
Stop and Frisk Searches
A "stop and frisk" is when a police officer stops a person to question them and, for self-protection only, carries out a limited pat-down search for weapons (a "frisk").
A police officer may stop and frisk a person if the officer has a "reasonable suspicion" that the person is engaged in criminal activity. This is an easier test for a police officer to meet than the "probable cause" that is required to make an arrest. In one recent U.S. Supreme Court case, the Court ruled that running away from the police is enough of a reason for the police to stop and frisk the defendant.
When frisking a person for weapons, police may feel a suspicious package that the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. And, if a search produces an illegal substance, it may result in an arrest.
Post-Arrest Questioning
The almost-universal advice of defense attorneys is to keep the old mouth tightly shut when being questioned after an arrest, at least until after consulting an attorney. Suspects all too frequently unwittingly reveal information that can later be used as evidence of their guilt.
Consequences of Failure to Provide Miranda Warning
Without a Miranda warning, nothing a person says in response to a custodial questioning can be used as evidence against the person at his or her trial. In addition, under the "fruit of the poisonous tree" rule, if the police find evidence as a result of an interrogation that violates the Miranda rule, that evidence is also inadmissible at trial.
For example, if a suspect tells the police where a weapon is hidden and it turns out that the suspect provided this information in response to improper questioning, the police will not be able to use the weapon as evidence -- unless the police can prove that they would have found the weapon without the suspect's statements.
When Police Come Down Too Hard
Information that is voluntarily disclosed to a police officer (after the person has been properly warned) is generally admissible at trial. The key word is "voluntary." Police officers are not allowed to use physical force or psychological coercion to get a suspect to talk to them. In addition, any evidence that the police obtain as the result of a coerced statement is equally inadmissible.
To learn more about Miranda, and to get answers to your questions about every part of a criminal case, read The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).
Criminal Procedure FAQ
© 2009 Nolo
The basics of criminal law: presumption of innocence, felonies, misdemeanors, and jury trials.
What's Below:
What's the difference between a felony and a misdemeanor?
What is the "presumption of innocence"?
How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
What standard is used in criminal trials to prove a defendant is guilty?
If I'm accused of a crime, am I guaranteed a trial by a jury?
Why would an innocent defendant choose not to testify?
What happens if a defendant is judged "incompetent to stand trial"?
What's the difference between a felony and a misdemeanor?
Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.
In some states, certain crimes are known as "wobblers," which means that the prosecutor may charge the crime as either a misdemeanor or a felony.
Behaviors punishable only by fine are usually not considered crimes at all, but infractions -- for example, traffic tickets. But legislatures sometimes label a behavior punishable only by fine as a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.
What is the "presumption of innocence"?
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put innocent people behind bars.
How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?
Criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense.
A prosecutor must convince a judge or jury that all of the elements of the crime have been satisfied -- meaning that the defendant did the acts and had the intent described in the statute.
For example, commercial burglary is commonly defined as entering a building belonging to another person, with the intent to commit petty or grand theft (that is, to steal), or any felony. To convict a person of this offense, the prosecutor would have to prove three elements:
- The defendant entered the structure.
- The structure belonged to another person.
- At the time the defendant entered the structure, he intended to commit petty or grand theft, or any felony.
Break the crime down into its required elements to see if each applies in your situation.
What standard is used in criminal trials to prove a defendant is guilty?
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in noncriminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.)
As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.
If I'm accused of a crime, am I guaranteed a trial by a jury?
The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. However, this right does not extend to petty offenses -- defined as offenses that do not carry a sentence of more than six months.
Usually, a right to a trial by jury means a 12-person jury must arrive at a unanimous decision to convict or acquit. However, a jury can consist of as few as six persons. (Williams v. Florida, U.S. Sup. Ct, 1970.)
The size of juries tends to vary depending on the seriousness of the charge. For example, California requires 12-person juries for both felony and misdemeanor trials, except that the state and defendant may agree to less than 12-person juries in misdemeanors. Florida law provides for six-person juries in noncapital cases and 12-person juries in capital cases.
In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, 12-member juries may convict or acquit on a vote of ten to two.
Why would an innocent defendant choose not to testify?
The 5th Amendment to the U.S. Constitution gives every criminal defendant the right not to testify, and jurors are told that they cannot assume anything negative if the defendant decides to keep quiet. Of course, some jurors do make assumptions -- and they cast their votes accordingly.
But there are some excellent reasons why a defendant might remain silent in court:
- If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out -- but only if the defendant testifies. Evidence of a previous crime may cause some jurors to think that the defendant is guilty of the current crime, too.
- If the defendant testifies, the prosecutor may be able to bring out other information that tarnishes the defendant's reputation and discredits his testimony.
- Some defendants have a poor demeanor when speaking in public. A judge or jury may not believe a defendant who, though telling the truth, is a nervous witness and makes a bad impression.
- The defendant may have a perfectly good story that would nevertheless sound fishy to the average jury in that particular locale.
What happens if a defendant is judged "incompetent to stand trial"?
The question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense.
Based on a defendant's unusual behavior, a judge, prosecutor, or defense attorney may ask that trial be delayed until the defendant has been examined and his or her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until competence is reestablished. At that time, the trial will be held.
Drunk Driving, DUI, and DWI FAQ
© 2009 Nolo
Charged with drunk driving, driving under the influence, or driving while intoxicated, DUI, or DWI?
What's Below:
- How drunk or high does someone have to be before he can be convicted of driving under the influence (DUI) or driving while intoxicated (DWI)?
- How can the police find out whether a driver is under the influence or intoxicated?
- Do I have to take a breathalyzer, blood test, or urine test if I am stopped for DUI or DWI?
- If I'm stopping for driving under the influence, am I entitled to talk to an attorney before I decide whether to take a breath, blood, or urine test?
- If I'm stopped for driving under the influence (DUI) or driving while intoxicated (DWI), can a police officer ask me questions without reading me my rights?
- I've been charged with drunk driving/driving under the influence/driving while intoxicated. Should I get a lawyer?
- I was pulled over at a DUI/DWI roadblock and asked to wait and answer a police officer's questions. Is this legal?
How drunk or high does someone have to be before he can be convicted of driving under the influence (DUI) or driving while intoxicated (DWI)?
It's illegal to drive a car while "impaired" by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver's body to prevent him from thinking clearly or driving safely. Many people reach this level well before they'd be considered "drunk" or "stoned." In all states, an adult who has a blood alcohol content (BAC) level of .08% or above is guilty of a DUI (driving under the influence) or DWI (driving while intoxicated).
However, almost all states consider drivers under the age of 21 to be driving under the influence of alcohol if their BAC is at or greater than .01% or .02%, depending on the state.
How can the police find out whether a driver is under the influence or intoxicated?
Police typically use three methods of determining whether a driver has had too much to drink to be driving (intoxicated), or is under the influence of drugs:
- Observation. A police officer will pull you over if he notices that you are driving erratically -- swerving, speeding, failing to stop, or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath, or notices slurred words or unsteady movements.
- Sobriety tests. If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe, or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication, and will judge your ability to follow exact instructions. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
- Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood, or urine test -- others do not. If you test at or above .08 % blood-alcohol concentration, you are presumed to be driving under the influence, unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver's alcohol levels are based on breath or urine tests.
Do I have to take a breathalyzer, blood test, or urine test if I am stopped for DUI or DWI?
You may refuse to take a chemical test (breathalyzer, blood test, or urine test) during a DUI or DWI stop, but almost every state has a so-called "implied consent" law that says a refusal can result in suspension of your driver's license from anywhere between three to 12 months. (This is true even if you're eventually found not guilty of the drunk driving/driving under the influence/driving while intoxicated charge.) Further, if your drunk driving case goes to trial, the prosecutor can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, intoxicated or under the influence of drugs.
If I'm stopping for driving under the influence, am I entitled to talk to an attorney before I decide whether to take a breath, blood, or urine test?
The answer depends on where you live. In California, for example, you don't have the right to speak with an attorney first before you decide whether to take a breath, blood, or urine test. But some states, including Arizona, allow you to talk to your lawyer before you take a chemical test.
If I'm stopped for driving under the influence (DUI) or driving while intoxicated (DWI), can a police officer ask me questions without reading me my rights?
Sometimes. Whether a police officer has to read you your rights on a DUI or DWI stop depends on whether or not you are in police custody -- that is, whether you are subject to the restraints common to a formal arrest. The U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute "custodial interrogation." However, once you are arrested -- or restrained by the police in a manner consistent with arrest -- you must be read your Miranda rights.
I've been charged with drunk driving/driving under the influence/driving while intoxicated. Should I get a lawyer?
Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving/driving under the influence/driving while intoxicated charge, you're well advised to hire an attorney who specializes in these types of cases.
These days it is hard to "win" a drunk driving case, assuming the police gathered some physical evidence against you (results of a breathalyzer, blood test, or urine test). And the punishments for DUI are pretty standard. If you were truly guilty, there's no guarantee that a lawyer could get you a better deal or plea bargain than you can get for yourself.
However, if the police don't have physical evidence against you (for example, you refused the chemical test), a good lawyer may be able to plea your case down to a "wet reckless" (alcohol-related reckless driving). While a wet reckless may not sound as bad as a DUI or DWI, it often carries almost the same fines and penalties as a DUI or DWI.
I was pulled over at a DUI/DWI roadblock and asked to wait and answer a police officer's questions. Is this legal?
Yes, as long as the police use a neutral policy when stopping cars (such as stopping all cars or stopping every third car) and they minimize any inconvenience to you and the other drivers. The police can't single out your car at a roadblock unless they have good reason to believe that you've broken the law, such as by driving under the influence of alcohol or drugs (DUI) or driving while intoxicated (DWI).
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