Know Your Rights When Arrested
This article uses the example of a drunk driving arrest to address some of the more common concerns clients raise after they have been arrested. The article is only intended to be informational and is not legal advice because every case is different and the facts of an arrest can be complex and should be carefully discussed with an attorney specializing in criminal defense law. Nor should this article be read as condoning drunk or impaired driving which maims and kills tens of thousands of innocent people each year and is the cause of about one-third of all traffic accidents in the United States. Id.
1. If arrested, remain silent and ask for your attorney.
If you are arrested, you have several rights including the right to remain silent and assistance from an attorney. Also known as Miranda rights, these are two of your most important constitutional rights as a citizen and you should not make any statements to the police without the aid of counsel and immediately request an attorney. Any statement you make to the police or anyone else will be used against you even if you think your statement is innocuous or helpful. Be respectful, polite and simply inform the officer that you wish to speak to an attorney before you decide whether to make any statements. This simple, polite request will "activate" important constitutional rights designed to protect you and deter police misconduct. The police will often tell arrestees that “it will go easier” if you make a statement and/or not involve an attorney but this is false and merely a tactic to improve their case against you. The police, prosecutors and judges cannot punish you for exercising your constitutional right to an attorney or for declining to make a statement without the aid of counsel. Once you tell a member of law enforcement that you wish to speak to an attorney, all custodial questioning must stop so ask to make that call to an attorney before answering any questions. If you are under 16 years old, the police must immediately notify your parents that you have been arrested and cannot question you until your parents arrive and call an attorney. New York Family Court Act § 305.2[3], [7].
2. What help can I get while I am being arrested?
An attorney can help you make certain decisions during an arrest. Apart from deciding upon whether to make a statement, one of the most common examples is deciding whether to take a breathalyzer or blood test in a drunk driving case. You may refuse to take a Breathalyzer or blood test but doing so will almost certainly result in the revocation of your license for at least one year. Because the law requires the police to take a blood or Breathalyzer test within a certain amount of time, the police may declare that you are refusing to take the test if you delay them. For that reason, you should immediately ask for an attorney to help you decide whether to take the test or answer any questions. If the police refuse your request to speak with an attorney, note the time and proceed with the test (subject to the guidelines below) but your right to counsel has “attached” and may result in the suppression of the test results and any statements made after the request for an attorney. Since most people carry cell phones, you should have your attorney’s phone number saved in your phone and tell the officer you wish to use your cell phone to call him. A request for a lawyer must be explicit and questions to the police like: “should I call an attorney?” or “do I need an attorney?” have been held by the courts to be an insufficient request for an attorney.
3. Should I take a Breathalyzer test?
The decision to take a breath or blood test must be decided on a case-by-case basis after considering several factors. The primary consideration is whether the loss of your license for at least one year for refusing the test is better than assisting the police prosecute you for DWI. Most often, criminal defense lawyers encourage clients to consent to the blood or Breathalyzer test because there are pathways to continue driving during and after your case has been resolved. On the other hand, the minimum one-year revocation for refusing to take the test is virtually automatic after a DMV hearing. New York is an “implied consent” state and you agree to take a breath or chemical test at the direction of law enforcement when you obtain your driver’s license. Thus, the penalty for not “honoring” that implied consent to take a chemical test is revocation of your license for at least one year even if you win the underlying DWI case. In certain cases where the client has been previously arrested for DWI, the decision to take the test is more difficult because a second DWI within ten years is a felony with the possibility of going to prison for up to four years. A third DWI offense in ten years is a felony with the possibility of going to prison for up to seven years. The penalties can also be severe if someone is seriously injured or killed. In these circumstances, it may be wiser to refuse a blood or breath test and lose your license for a year rather than assist a felony prosecution by providing a Breathalyzer or blood test result.
4. If I refuse to take a breath test, can I be forced to take a blood test?
In some cases, the police are authorized to take your blood to test the amount of alcohol in your blood. Recently, the U.S. Supreme Court held in Missouri v. McNeely that the police must obtain a warrant or similar court order to take your blood without your consent. A blood test is usually done (as opposed to a breath test) when the client is in an accident and is either unconscious or lacks the capacity to consent to a blood test. We will have to wait and see how the Supreme Court’s decision in McNeely will impact police behavior in New York.
5. If the police don’t get a blood or breath test result from me, can I still be convicted of DWI?
Yes. In New York, the prosecution can prove you were driving while intoxicated if your Blood Alcohol Concentration was .08% or higher. However, even if the police and prosecution do not have a blood alcohol concentration result from a blood or breath test, you will still be charged with “common law” driving while intoxicated. Although harder to prove without a chemical test result, drunk driving can be proved by the circumstances of your arrest witnessed by the officer or a civilian (including your passenger) testifying about your condition at the time of arrest. Here is a common example:
The officer testifies that he witnessed you driving erratically and pulled you over to give you a ticket for crossing the double-yellow line. Upon approaching your window to ask for your license and registration so he could write the ticket for the traffic infraction, he smelled alcohol emanating from your mouth and noticed you had glassy eyes and slurred speech. After asking you to exit the vehicle, he noticed that you staggered and were unsteady on your feet. At the point he administered a number of field sobriety tests (e.g., stand on one leg, walk a straight line, recite the alphabet, following a light or pen with you eyes, etc.), which he says you failed. To further buttress a common law DWI case, motorists will often make statements in answer to the question, “have you been drinking tonight?”
Courts have held that asking this question about how much you have had to drink, without first apprising the motorist of his right to remain silent and the right to an attorney, is permissible as part of a traffic stop investigation. Officers also often ask motorists where you have been and where are you going hoping you will admit that you are coming from a bar. Nevertheless, you are not legally required to answer any of the officer’s questions and are only required to provide your license, vehicle registration and other relevant documentation like an insurance card. Never argue with the officer or tell him what you think the law is. Always be polite and respectful and follow his lawful directions such as exiting the vehicle and participating in field sobriety tests or taking a breath test. Do immediately ask for an attorney and do not answer the officer’s questions without the aid of counsel or give your consent to have the vehicle searched without the aid and advice of an attorney.
6. Don’t be afraid to assert your rights.
Requesting an attorney and remaining silent does not “make you look guilty.” On the contrary, asking for an attorney and declining to provide a statement without the benefit of counsel communicates to the police that you are a citizen who knows his or her constitutional rights and they should follow correct procedure because the arrest will be carefully scrutinized. While refusing to answer police questions and asking for an attorney may seem uncomfortable, impolite or provocative and it mayfeel like it makes your situation worse, in the long run, it is one of the few things you can do at the arrest scene to reduce your chances of getting a criminal conviction. The truth is, if you have been drinking and driving, there is little you can do to control the situation at the arrest stage of the case. Asking for an attorney and remaining silent will not change the police officer’s behavior because if he has legal cause to believe you have been drinking and driving, he will arrest and charge you. Many people fear that if they assert their rights during the arrest, the police might hold them in detention longer or even tamper with the Breathalyzer test to inflate the results. While it is possible to contaminate a breath test sample, most officers will not risk their careers and criminal prosecution by falsifying test results. Furthermore, the New York State Court of Appeals had held that you must be brought before a judge to be arraigned (formally apprised of the charges and your release conditions set) within 24 hours of being arrested. These wait times are even shorter in upstate New York because most police stations do not have legally adequate holding cells or other facilities to detain prisoners for prolonged periods. If a police officer detains you because you asserted your constitutional rights, it will only damage the prosecutor’s case and subject the officer to disciplinary action and/or a civil rights lawsuit.
If you have any questions about your criminal case, please give Michael Pollok a call at 845-514-2093 for a free consultation.
