A) For DUI: 1) Be courteous. 2) Politely say that on the advice of counsel you will take no field sobriety test, and that you will answer no questions until you speak with your attorney. Then say nothing further, but do produce your license and vehicle title on request. 3) If you refuse to take a breathalyzer, blood or urine test, you'll lose your license for a year. Blood tests are more accurate, and you can ask for one instead of a breathalyzer, but you must pay for the test and find a doctor to do it (I have that lined up if needed). Remember that the police control the breathalyzer.
B) For anything else: Ask for an attorney during any questioning, even if you're not in custody. No matter what police say, you don't have to answer anything, and they never treat you better without an attorney than with one. Remember that even if you did nothing, your statements can hurt you later. This advice also applies if the questions are from a Department of Children's Services caseworker or investigator -- without a warrant or court order, do not let them into your home. Play it safe, call your attorney first.
C) Always be completely honest; either answer everything fully, or answer nothing whatsoever until talking with your attorney.
Prepared as a courtesy of Attorney Jes Beard
423-267-4391(Office)/423-267-6801(Home)
(Click here to be able to print the above advice to carry with you in your wallet.)
You DO have the right to an attorney... but only if the officer is questioning you. It is a common misconception that the officer must give you a "Miranda warning" when you are arrested. This is not the case. It's simply that if the officer fails to advise you of your right to counsel, the officer is not allowed to question you and can't use anything against you if he does question you without advising you of your right to an attorney. This is all based on the 1966 U.S. Supreme Court decision of Miranda v. Arizona. (Click here to read full decision.)
In that case the Court held as follows:
This remains the law today.
"(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way (footnote 4). As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [384 U.S. 436, 445] process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned."
Remember that once a police officer begins to view you as a suspect, he's looking for a way to justify your arrest and to then get you convicted... and officers don't always tell you when you are a suspect. They are allowed to mislead you and trick you... and they regularly do. They also can ask you anything they want without ever advising you of your right to an attorney, so long as they ask you before your arrest.
Your statements, even when innocent, can end up being twisted or misconstrued to result in an arrest... and even a conviction.
Be very cautious about answering an officer's questions unless you called the officer for help, in which case the officer is unlikely to be looking at you as a suspect.... at least not initially. And even if you called the police for help in the first place, if you even begin to think the police may consider you as a suspect, immediately tell the officer you feel uncomfortable answering any further questions without first speaking with your attorney. Then flatly refuse to answer further questions until you do speak with your attorney.
The same advice holds for any request by an officer that you perform any field sobriety tests or other exercises after a DUI stop, or for any request that you show the officer anything or do anything to help the officer determine whether you have done anything wrong.
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