It is an unfortunate fact that many citizens of the freest nation on the planet are simply not aware of their God-given rights that upheld by the United States Constitution and the Bill of Rights. As a result, suspects (even the innocent ones) in criminal and DWI matters often incriminate themselves in a variety of ways, making the police and prosecutors’ jobs a breeze in securing arrests and convictions. Know your rights, use your head, and avoid these common pitfalls.
1) Do Not Provide a Nice, Fat, Juicy Statement to the Police
You have the right to remain silent… So REMAIN SILENT!
The Miranda Warning is read by police nationwide and comes to us by way of State v. Miranda. The main point of Miranda is to ensure that citizens who are suspected of illegal activity are not forced to incriminate themselves.
Police must recite the warning to and often have a written Miranda waiver signed by a suspect before an interrogation. The warning itself is two-fold because it 1) acknowledges the right to remain silent, and 2) acknowledges the right to an attorney or the private or public variety.
Here is the important part of the right to remain silent – YOU MUST REMAIN SILENT! Time and time again, I deal with clients who provide incriminating statements to the police after being read the Miranda Warning. Even innocent parties get caught up in this mess by opening their mouths. I assume most of their interactions go something like this:
Officer: “You have the right to remain silent, etc. etc.”
…10 minutes later…
Suspect: “OK I did it.”
Officer: So how much did you drink before getting behind the wheel?
Suspect: 9 beers and three shots, sir. I am pretty loaded.
So remember, the right to remain silent only works if you exercise the right. Which brings us to the 2nd thing NOT to do if you get arrested….
2) Do NOT Forget to Say You Want an Attorney, or Worse, Say You Don’t Want an Attorney!
This is a BIG one. Telling the police that you want an attorney is the same thing as shutting a door in their face or hanging up them.
The interrogation stops. Done.
You may be arrested and placed in a cell. You may sit in jail until you are bailed out or see a judge at a detention hearing. You may be released on your own recognizance.
All of the above options are better than providing a statement that can and will be used against you, especially because there is a 99.999999% chance that rather than changing the officers’ minds you will make matters much much worse for you.
3) Do NOT Mouth Off, Act Rudely, or Make the Police Remember You as Anything Other than a Respectful, Calm, and Polite Model Citizen!
I understand that the first two tips can be construed as being uncooperative. Remember, invoking your rights is not the same as being uncooperative.
You can invoke your right to remain silent and your right to an attorney in a polite way. Here’s how:
Officer: “Please sit down. We are going to ask you just a few questions about what transpired tonight.”
Suspect: “I would like to have my attorney present for your questions.”
Officer: “License, insurance, registration.”
Suspect: “Of course, Officer. Here you go. Please tell me why I have been pulled over.”
Officer: “License, insurance, registration.”
Reese Witherspoon: Do you know who I am?!?! (It got worse)
It does not pay to argue or be impolite with officers. You would be surprised how many times the behavior of suspects during and immediately after an arrest plays a role in plea-bargaining many cases.
Face it, when the officer writes the ticket or takes out the cuffs, reality is upon you. Remember, prosecutors usually speak with arresting officers during the plea-bargaining stage of criminal matters. If your arrest was unremarkable in the officer’s point of view, or better yet, memorable because you were such a cooperative, calm, model gift to the human race, you have a much better shot at a favorable outcome than the guy or girl who put up a fight. You can also pick up new charges like disorderly conduct, obstruction of justice, resisting arrest, or assault on an officer.
Officers are just regular people like you so treat them like it, except….
4) Do NOT Assume that the Officer is Telling You the Truth!
Many are surprised when they find out that officers employ a broad use of tactics when conducting an arrest or an investigation, and in some cases can bend or ignore the truth altogether.
This is not the case in some situations, such as when a person asks an officer if he or she is under arrest. It is the case, however, when officers say things like:
“If you’re cooperative I’ll make sure to put in a good word with the prosecutor.”
Translation: “It’s late. We both know you did it. ‘Fess up because my shift is almost over.”
“Come on down to the station, buddy. We’re just going to ask you a few questions and you’ll be on your way, sport.”
Translation: “I am so arresting you.”
Like most professionals, detectives and officers have a reason for everything they do. Detectives and officers are pros at investigating crimes and arresting people.
This situation is almost always avoided when people invoke their right to remain silent and their right to legal representation.
5) **In New Jersey,** In Most Cases, Most Attorneys Will Tell You: Do NOT Refuse a Breath Test if You are Arrested for a DWI
***Disclaimer: If you are not a New Jersey resident, discuss this matter with a local defense lawyer as state laws differ.***
Refusals essentially double the penalties for a DUI. Instead of being charged with drunk driving, you will be charged with drunk driving AND refusing a breath test.
While not impossible to beat in court, refusal charges are substantially more difficult to defend than drunk driving charges. This is due to New Jersey’s Implied Consent Law which applies to individuals operating on NJ public roadways. Essentially, by getting behind the wheel, you have already consented to a breath test. Didn’t know that, do you? You’d think there’d be signs or something.
An arrest is a scary, stressful, and life-altering ordeal. Have courage under fire and know your rights, be respectful, and fight your case with an attorney you trust. If you have any questions, don’t be afraid to give us a shout.