What should you say to the Police?

October 30, 2011

NOTHING! – If Contacted by a cop regarding a criminal investigation, do not say anything to the Police, ever!
Whether you are innocent or guilty, you should remain silent. When a cop tells you that “anything you say can and will be used against you in a court of law”, they mean it. Anything you say can never help you and can only hurt you. So don’t say anything? In DUI cases in particular, more people talk their way into jail than talk their way out of jail. Remember this key fact: It doesn’t matter what you did. All that matters now is what the authorities think you did and what they can prove you did. So, don’t help the Police prove anything. Don’t provide a confession or any statement. Despite anything they say, the Police are not trying to help you; they are trying to convict you. The Police will try every trick in the book to get you to talk. The Police will tell you that they are helping you and that telling what you have done will “make you feel better”. Don’t do it, unless incriminating yourself and being convicted makes you “feel better”. If you are the suspect of a crime and the Police Question you, just say that you mean no disrespect but wish to exercise your right to remain silent. Tell them “I don’t want to be questioned”; and Say the magic words: “I want to speak to an Attorney” – As soon as you say that you want a lawyer, the Police must cease all questioning.

There are 3 types of Police encounters with citizens:
1) Consensual Encounters – This is when the Police, without any stated suspicion of you, simply say hello to you or ask you questions. It is a consensual encounter because you consent to talk to them. Unless you are legally detained or arrested, you are entitled to ignore the Police or tell them you don’t wish to talk.

2) Detentions –this is the most common type of encounter in DUI cases, when the Police stop and detain you for investigation, and, for a time, you would be reasonable to infer that you are not free to leave.

3) Arrests (Custody) – when the Police take you into their custody, usually accompanied by telling you that you are under arrest(but not always), hand-cuffing you, and/or physically confining you to their Patrol Car, taking you to the station to take a breath test or a Jail cell.

The type of your encounter with the Police may later determine whether your statements to the Police can be used against you in court. Generally, a law enforcement officer only need to Mirandize you (read you your rights) when arresting you and can only use your statements against you if the Detention or Arrest was legal (i.e. did not violate your constitutional rights). Police can always use your statements made during consensual encounters against you in court. The Police do not have to read you your rights in non-custodial interrogations (ie. when you are free to leave). The point of the above is that there are complex criminal and constitutional laws governing when and how your statements can be used against you in court. However, you always retain one option – the right to remain silent! if you don’t talk to the police, the nature of your police encounter is irrelevant; your attorney will only have to litigate the nature of the police encounter if the prosecution wants to use your incriminating statements (or the evidence they lead to) against you. CONCLUSION – In any Police encounter, since, your statements to the Police can only hurt you, Don’t talk to the Police. Remain Silent! Ask for a Lawyer.


A Kern County DUI Explains The Law Relating to Suppression Of Evidence

October 9, 2011

In a DUI prosecution motions are often made to suppress or exclude evidence obtained by the police pursuant to Penal Code 1538.5. Commonly in DWI cases the defense would like to have the bllod test thrown out because the cops failed to explain the choice of tests, ie. breath to a suspect. A Motion to suppress results of blood test (or evidence of refusal) on the ground that the police denied the defendant a choice of tests may not be the appropriate vehicle. Indeed, a Penal Code §1538.5 motion has been held to be improper because the denial of a choice of tests may violate due process but does not violate the Fourth Amendment; common law suppression motion is proper method for challenging due process violation. Similarly, a motion to suppress a statement on Miranda or voluntariness grounds cannot be brought under Pen C §1538.5, but a motion to exclude a statement on the ground that it is the result of an unlawful detention or arrest falls within Pen C §1538.5. The underlying principle is that Pen C §1538.5 motions are limited to those that make a Fourth Amendment claim, subject to rare exceptions.

According to a prominent local Kern County DUI Lawyer, The district attorney has the burden of proving the validity of a warrantless search or seizure, after the defendant has established that there was no warrant, as is often the case in drunk driving prosecutions. The defendant has the burden of proving the invalidity of a search or seizure under a search or arrest warrant. The standard of proof is a preponderance of the evidence.


A Kern County DUI Attorney Discusses Court Fines

October 2, 2011

In these tough economic times, more and more traffic offenders are finding it increasingly difficult to pay court mandated fines for tickets. Fortunately, California law permits payments of fines and fees in installments. Specifically, if an infraction violation of the Vehicle Code or an infraction violation of an ordinance adopted under the code does not require a court appearance, the court clerk may accept a payment and forfeiture of bail in installments.  An initial installment payment of at least 10 percent of the total bail amount for each infraction violation must be made to the court clerk before the date on which the violator promised to appear, or before to the expiration of any continuance, or on receipt of information that an action has been filed and before the scheduled court date.  According to one knowledgable Kern County DUI Attorney, as a condition of payment of bail installments, the defendant must sign an Agreement To Pay and Forfeit Bail in Installments, which sets out the terms of the installment payment schedule as agreed upon with the court.  The right to make payments on a fine also apply to misdemeanor offenses such as drunk driving and DUI.

The defendant must also submit proof of correction when such proof is mandatory for a correctable offense.  When the clerk accepts the agreement for payment and forfeiture of bail installments, the clerk must continue the appearance date to the date scheduled for completion of payment and forfeiture of bail in the agreement. For purposes of reporting violations to the DMV under Vehicle Code §1803, the date that the defendant signs an agreement to pay and forfeit in installments is reported as the date of conviction.

The defendant must pay to the clerk or collection agency a fee equal to the administrative and clerical costs of processing installment accounts as determined by the board of supervisors or the court, up to a maximum of $35.  If the defendant fails to make an installment payment according to the agreement, the court may charge a failure to appear or pay under CA law, says a Kern County DUI Lawyer, and the court must impose a civil assessment as provided under current law, or issue an arrest warrant for a failure to appear.  The sanctions for failure to pay the fines can indeed be harsh.

Vehicle Code §40512 provides that if the defendant does not make an installment payment as agreed and fails to appear at a compliance appearance, either in person or by counsel, the kern county court may continue the arraignment to a date beyond the date of the last installment payment date, issue an arrest warrant, or impose a civil assessment as provided under Penal Code §1214.1 for the failure to appear.  If the traffic ticket violator has paid all the required bail funds and does not appear at a compliance hearing, the court may declare bail forfeited and order that no further proceedings take place in the case, with specified exceptions.