Sacramento Criminal Defense Lawyer Blog

In recent posts we've covered separately Miranda rights and California DUI law. It's important to be aware, however, how Miranda applies to DUI, including some important limitations.

People often ask these questions: "When I was arrested for DUI, the officer did not read me my Miranda rights. Isn't that a violation of police procedure? Doesn't that somehow compromise the prosecution's case?"

The answers to those questions are usually no and no. Here's why.

Your Miranda rights are the following:

• you have the right to remain silent;
• any statements you make may be used against you in a court of law;
• you have the right to an attorney;
• if you can't afford an attorney, the court will appoint one.

This Miranda warning concerns your rights when two conditions are met: first, you are in police custody (i.e., you've been arrested and detained); second, you are being subjected to an interrogation (the police are asking you questions about the alleged crime).

If the police pull you over for suspicion of DUI, they will pose a series of questions to determine if you are impaired. These questions are considered an investigation that precedes an arrest. Keep in mind the conditions listed above that require police to advise you of your Miranda rights: arrest, detention, and interrogation. Pre-arrest investigative questions do not constitute a Miranda violation.

It's also important to understand that any comments you make during a casual conversation with the officer may be used against you. For example, let's say that you talk with the officer while being transported from the arrest scene to the jail. If the officer has not initiated a formal interrogation about the alleged crime, then Miranda does not apply.

Finally, if you are pulled over for suspicion of DUI, you are within your rights to inform the officer that you do not wish to answer any questions. If the police wish to interrogate you, a Miranda warning should be given and you should seek the advice of an attorney before answering any questions.

If you have any questions about DUI and Miranda rights, call the Law Office of Nancy King at (916) 442-1200.

The Miranda warning is an element of the criminal justice system that through TV and movies has become widely recognized among Americans. This warning, which springs from the U.S. Supreme Court's 1966 decision in Miranda v. Arizona, is meant to ensure that citizens understand their constitutional rights if they are arrested and subjected to interrogation by law enforcement. Supreme Court decisions during the past year, however, have placed important restrictions on the scope of the Miranda warning.

In 1963, Ernesto Miranda was arrested for the kidnapping and rape of an 18 year old mentally handicapped woman. During questioning by the police, Miranda admitted to the crime. His confession was used at trial and he was found guilty.

The U.S. Supreme Court agreed to review the case and in its decision said that people must be provided with basic information on their constitutional rights. At the time of Miranda's arrest, the presumption was that this was the responsibility of the individual. The Court ruled, however, that police must provide the following information to anyone arrested and interrogated: they have the right to remain silent; any statements they make may be used against them in a court of law; they have the right to an attorney; if they can't afford an attorney, the court will appoint one. None of this information had been provided to Miranda.

Note that the focus is on instances when someone is arrested and interrogated. Thus, someone who has not been arrested but is merely answering questions posed by police (such as during a traffic stop) need not be informed of his Miranda rights. Incriminating information provided during this sort of questioning may be used as evidence during a trial.

Two recent Supreme Court decisions placed additional important limitations on Miranda rights. In Berghuis v. Thompkins, the Court decided that the burden of invoking the right to remain silent falls on the suspect. That means that if a person does not clearly invoke his 5th Amendment right to silence, police may continue with their interrogation. In the other decision, Maryland v. Shatzer, the Court stated that for suspects who have invoked their Miranda rights and then been released, these protections do not inhibit police indefinitely. The Court declared that a 14 day period was sufficient to allow the suspect to contact a defense lawyer and decide what to do if contacted again by law enforcement. After those 14 days, police may again approach and pose questions to the suspect.

The law surrounding Miranda rights is complex and changing. If you have questions about this topic or others covered in our blog, call the Law Office of Nancy King at (916) 442-1200.

The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

The felony process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.

First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.

Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.

Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.

Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.

Continue reading "Steps in the Criminal Justice Process: Felonies" »

Crimes are divided into three categories: infractions, misdemeanors, and felonies. (See our September 21 post for a detailed description of each of these.) Though each is dealt with according to the same general rules as it winds its way through the criminal justice system, more severe crimes follow a more complex and lengthy path.

Infractions like traffic tickets are pretty simple. Since no arrest is made, people cited for infractions can either pay the fine or contest the citation in court. Generally, defense lawyers and prosecutors are not involved. Instead, a judge handles review of the matter, determines whether the infraction was properly issued, and sets appropriate fines, if any are necessary.

Misdemeanors and felonies, because the potential penalties are more severe, involve more people and have more stages before a final decision - or verdict - is made. Today's post outlines the misdemeanor process. Our next post will review the felony process.

In each of these processes, a wide variety of people are involved: judges from the judicial branch of government; police/sheriff/CHP, prosecutors, and probation officers from the executive branch; defense attorneys; jurors. All play a different role as the allegation is reviewed and determination of guilt or innocence is made.

Misdemeanors - such as petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking - carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project.

These are the stages in the misdemeanor process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation; in others, police will make an arrest as a result of evidence that comes before them in the field (e.g., they see someone selling drugs or committing a battery). The incident reports are then submitted to the district attorney's office for filing of a criminal "complaint."

Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel. Bail may be set, though misdemeanors generally have low bail requirements; often defendants are released on their own recognizance.

Continue reading "Steps in the Criminal Justice Process: Misdemeanors" »

A central tenet of the U.S. criminal justice system is presumption of innocence, a safeguard of the rights of American citizens since the nation's founding. In today's media saturated world, however, where information zips from terminal to terminal in seconds and people believe they know the truth because they have read something online or seen something on TV, it's important to remind ourselves of the importance of the presumption of innocence, which places the burden on state prosecutors to prove guilt, not on the accused to demonstrate innocence.

Considering someone innocent until proven guilty is actually not explicitly stated in the U.S. Constitution. Instead, it is implied in various amendments such as the Fourth Amendment prohibition against unreasonable searches by the government, the Fifth Amendment guarantee that a person cannot be compelled to be a witness against himself, and the Sixth Amendment rights of the accused to confront witnesses against him and to have the assistance of legal counsel. Through court decisions and federal and state laws, presumption of innocence has been infused throughout our criminal justice system.

Of course, this presumption applies only to the government, in the persons of law enforcement and the judiciary. It does not apply to the news media and private citizens. When confronted with a crime, they are free, because of the First Amendment, to make any suppositions they desire about who did what to whom and why.

The problem is that often this speculation is based on incomplete and incorrect evidence. Law enforcement, prosecutors, and defense attorneys are sometimes precluded by court order from disclosing details of a live case, but usually they refuse to divulge information for the simple, essential purposes of protecting the privacy of people involved as well as preserving the integrity of the legal system as a whole. The fact is that when a criminal complaint is filed, it is often based on untested information: a witness who hasn't been subjected to cross-examination, a portion of an audiotape or videotape that hasn't been reviewed in total, an investigation that is incomplete.

Continue reading "Presumption of Innocence and Electronic Media" »

In yet another opinion that deals a blow to the rights of criminal defendants, the United States Supreme Court has eased some limits on police tactics to obtain incriminating statements after defendants have been appointed legal counsel.

The case of Montejo v. Louisiana involves the arrest of Jesse Montejo for the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights, and during interrogation by the police eventually admitted to committing the murder. At a subsequent hearing, a judge ordered that Montejo be appointed legal counsel since he could not afford to hire an attorney. Later that day, before Montejo had met with his attorney, police detectives convinced Montejo to accompany them on a search for the murder weapon. After again being apprised of his Miranda rights, Montejo went with the detectives. During that trip he wrote a letter apologizing to the victim's widow. After returning from the excursion, Montejo finally met with his attorney. Though Montejo's attorney objected, the letter of apology was used by prosecutors during trial. After being found guilty, Montejo was sentenced to death.

In subsequent appeals, Montejo argued that since he had not yet met with his court appointed counsel, the police should not have been permitted to talk with him and cajole him into going with them to locate evidence.

The Supreme Court disagreed, stating that Montejo's waiving of his Miranda rights allowed the police to talk with him and ask for his help in locating evidence. The mere appointment of counsel, the Court ruled, does not preclude police from attempting to gather evidence or obtain incriminating statements. The Court did say, though, that once a suspect invokes his/her right to counsel under Miranda, the police must cease interrogation without the presence of counsel.

This ruling highlights the necessity for citizens to closely protect their Fifth Amendment right against self-incrimination and Sixth Amendment right to legal counsel. When being questioned by the police for possible involvement in a crime, it is best to be prudent and say that you will not answer questions without a criminal defense lawyer present. As United States citizens, we are blessed to have our Natural Rights enshrined in our Constitution and embedded in our legal code. This ruling by the Supreme Court, however, provides police with more opportunity to extract incriminating evidence from citizens not familiar with the legal process.

Montejo v. Louisiana, U.S. Supreme Court
"The Supreme Court Moves to the Right, Perhaps Sharply to the Right," California Bar Journal, August 2009