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Article posted Aug 18 2014, 12:51 AM Category: Commentary Source: Marc J. Victor Print

If You're Ever Charged With A Crime, Don't be Your Own Worst Enemy

By Marc J. Victor

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 your family member or friend to the witness stand in a criminal trial and ask questions about your statements.  Such a dilemma 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 you 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 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.

You can't be forced to submit to roadside field 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.

Deciding whether to submit to a blood, breath or urine test is a different matter altogether.  If you refuse one of these tests, you will lose your driver's license for one year.  You should consult an attorney before deciding to refuse or submit to one of these 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.

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Comments 1 - 2 of 2 Add Comment Page 1 of 1

Posted: Aug 19 2014, 2:09 PM

"However, if a search warrant has not yet been obtained, you should insist the officer obtain one before you voluntarily allow a search"

This is also risky, as demonstrated by Cotati incident ( where the citizen tried just that. The result: the police claimed exigent circumstances, where in fact there weren't any, broke in, tazed everybody inside and arrested homeowner for obstruction. It did proceed to trial (i.e. the charges were not dismissed), but the jury deadlocked. Which means that the possibility of very real jail term for anybody who refuses to open the door without a warrant, is very real.

Posted: Aug 19 2014, 7:08 PM

75121 If I know I have done nothing wrong...I will shoot any felon that forces their way into my home....No matter their costume....

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