Glenn Magnell:
Know Your Rights
Most people never think about what they'd do if they were to be arrested or
taken into custody for questioning by the police. That's something that only
happens to criminals, right? Well, not always. The truth is that the
terrifying experience of being arrested or questioned by the police can happen
to anyone. A case of mistaken identity, an overly aggressive law
enforcement officer, a dispute with another person, even a simple
misunderstanding can result in virtually anyone being questioned by the police,
arrested and even charged with a crime in a court of law. Should it happen
to you, it is important to understand that you have very powerful rights that are
guaranteed to you by the United States and New York State Constitutions.
These rights are designed to protect your individual liberties and prevent law
enforcement authorities from abusing their powers.
What Does Being Arrested Mean?
When
a police officer or a private citizen takes you into custody, physically
restrains or verbally insists you not leave in order to have you answer for an
offense or a crime, you have been arrested. This may mean you will
actually be taken into custody or you may be issued an appearance ticket,
which requires you to appear before a judge at a specified time. (This is similar
to receiving a traffic ticket, though it may involve a more serious offense than a
traffic violation). When a police officer makes an arrest
without an arrest warrant, the officer must give you a reason for
arresting you (unless you were arrested while in the act of committing a
crime or were being chased by the police).
If I am Arrested What Rights do I
Have?
If you are arrested (with or without an arrest warrant),
you have a number of rights that the police must respect:
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-You have a right to refuse
to answer any questions the police ask you.
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-You have a right to consult
a lawyer before you agree to answer any questions.
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-You have a right to have an
attorney present when you are questioned by the police.
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-You have a right to have an
attorney present at any identification 'lineup' that takes place
after you have been arrested.
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-You have a right to be
brought before an impartial judge at the earliest possible time.
After you are arrested, you should be brought before a
judge at the earliest opportunity where the charges against you will be read to
you and you will be asked how you plead to the charges presented. When you
appear before any court, you have the following rights:
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-You have a right to have a
lawyer represent you in any proceedings that take place in court or
are related to those proceedings.
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-You have a right to ask the
judge to provide you with the time and opportunity to obtain a lawyer
(phone and/or mail access).
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-If you cannot afford a
lawyer, you have a right to ask the court to appoint a lawyer to
represent you.
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-You have a right to request fair
and reasonable bail.
What is an Arrest Warrant?
An
arrest warrant is a document issued by a judge or magistrate authorizing law
enforcement authorities to take you into custody in order to answer for a crime
you are alleged to have committed.
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-For an arrest
warrant to be issued, the police must convince a judge that they have probable cause
to believe that you committed a crime.
-
-Arrest
warrants can be issued at any
time of day or any day of the week.
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-If you are arrested by a
police officer who
has a warrant, he must tell you that he is acting under the authority of a
warrant for your arrest .
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-Police must show you the warrant. (You can ask to read the warrant,
and he should let you read it unless special circumstances
exist.)
Generally, if a police officer comes to your home with an arrest warrant for you,
he must also have a search warrant (also issued by a judge) if he intends
to enter your dwelling through the use of force (any entry without your
permission). However, if you refuse to
allow a police officer with an arrest warrant into your house and he reasonably
believes that you may escape, destroy evidence or that giving you notice will
put him at risk, he can legally force his entry without a search warrant.
Can I be Arrested Without an Arrest Warrant?
Yes. A law enforcement officer can arrest you without an arrest warrant, under
certain circumstances.
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-If an officer has reason to believe that you have
committed or attempted to commit a crime, an offense or a violation in his
presence, he can
arrest you without an arrest warrant.
-
-If an
officer has reason to believe that you have committed a felony or a misdemeanor
(even though not in his presence), he can arrest you without a warrant.
-
-If an officer has reason to believe that a private person had made a lawful
citizens arrest, he can arrest you without a warrant.
In any of these cases,
the officer must tell you why he is arresting you (unless you are attempting to
escape or actually in the act of committing a crime). A law enforcement officer
can pursue you beyond the limits of his jurisdiction (for example, from one town
to another or from one county to another).
Can I be Questioned Without an Arrest
Warrant?
Yes. If
you are in a public place and a police officer has a reasonable suspicion that
you are, have or are about to commit a crime, the law permits the officer to
approach you and ask you questions. These questions may include asking for
your name, address and the reasons for the activity the officer has observed.
You have a right to remain silent and not answer any questions. If the
police officer prevents you from 'walking away' or physically takes you into
custody:
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-The
officer is required by law to advise you that you have a right to remain
silent.
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-The
officer is required to advise you that you have the right to consult with an
attorney and have the attorney present.
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-The
officer is required to advise you that anything you do say can be used
against you in a court of law.
These rights
are collectively known as 'Miranda Rights'. If you are not told of these
rights prior to a law enforcement officer questioning you (when you do not feel
free to walk away), anything you say cannot be used against you in a court of
law. However, if you say something to the officer that is not in response
to an attempt to elicit information from you, it probably can be used against you
in court.
When is it Legal to Search my Person,
my Home or my Car?
In general,
before a law enforcement officer can search your person or your home, he needs to
possess a legally valid search warrant. Like arrest warrants,
search warrants must be issued by a judge or magistrate based upon a finding
that probable cause exists to believe that evidence of a crime, proceeds
of a crime or contraband will be found. Search warrants must be specific
as to what location is to be searched and what item(s) are being searched for.
However, there are important exceptions to this general rule which do
not require an officer to have a search warrant:
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-If
a police officer is questioning you and reasonably believes that he may be
in danger, he may conduct a 'pat down' search on the exterior of your clothing to determine if you have a weapon. Anything the officer
discovers as a result may be used against you in a court of law.
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-If
you are lawfully arrested, an officer may conduct a full search of your
person and the immediate area around you as part of the arrest.
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-An
officer cannot search your home without a search warrant unless he has
lawfully arrested you in the home; even then he can only search the
immediate area around where you have been arrested.
An even
larger set of exceptions to the basic requirement for a search warrant exists
when a police officer has lawfully stopped your vehicle. Courts have
consistently ruled that the 'expectation of privacy' that exists in your home
does not exist (to the same extent) in your car. Any items that are 'in
plain view' in your vehicle are subject to search by an officer with a
reasonable suspicion that illegal activity has taken place or is taking place. In
addition, a special set of rules exists with regard to the lawful right of the
police to search and seize your person if they suspect that you have been
driving while intoxicated.
Alan Joseph:
In New York, a blood alcohol concentration (BAC) of .07% is considered to be evidence that your ability is impaired by alcohol (termed DWAI or driving while ability impaired), which is not a criminal offense, but substantial penalties can be imposed. However, a blood alcohol concentration of .08% or more is evidence of intoxication (known as DWI, driving while intoxicated, and/or driving with a BAC of .08 or more.), which is considered a criminal charge. The difference between the two can have a tremendous impact on your lifestyle and your future.
Brian McNamara:
Driving while intoxicated is a serious offense. If you are stopped by the police after consuming alcohol, it is essential that you take affirmative steps to minimize your potential liability.
Depending on the amount of alcohol you've consumed, your degree of impairmentand whether you've had previous convictions for driving while intoxicated, you may be charged with a violation, a misdemeanor or a felony. Even ifit is your first arrest for driving while intoxicated, a vigorous defense is essential, because subsequent arrestsare treatedmore harshly once you've been convicted of driving while intoxicated.
If you are stopped, do not argue or fight with the police: give them your license and registration and step out of the car if requested to do so. Do not answer any questions. All you need say is that you prefer not to answer any questions. You are not under any obligationto say anything to the police and itis best that you do not.
If the police ask you to take an "alcohol screening test," politely refuse. You do not have to submit to a screening test unless you've been involved in an accident.
If the police ask you to perform various field sobrietytests or maneuvers, politely refuse. You areunder no obligation to perform agility or coordination tests by the side of the road. If the police persist, just sit down.
The reason the police ask you questions, askyouto take a "screening test" and perform field sobriety tests, is to get enough "reasonable cause" to arrest you for driving while intoxicated. Don't help them!Dont' make any statements and simply refuse to participate.
If you have a cell phone, ask to be permitted to call your attorney. Be careful what you say on the phone, the police are listening.
If you are arrested for driving while intoxicated, the police will ask you to take a "breathalyzer" test to measure your blood alcohol content. If you refuse this test, your drivers license will be revoked. It will not matter if you are subsequently found not guilty at trial; your license will be revoked.
If at all possible, you should consult with an attorney before deciding whether to take the "breathalyzer"test. If yo have a prior "DWI" conviction or if you've been involved in an accident, it may be best not to take the test. Even if it's your first arrest for "DWI," there are situations where it is better to refuse the test and deal with a license revocation.
After your arrest and prior to your first court appearance, you should retain an attorney to represent you. The earlier the entry of an attorney into the case, the more likelihood of obtaining a favorable disposition. You should choose an attorney who handles primarily criminal matters and has experience with driving while intoxicated cases. Beware of attorneys that simply want you to plead guilty at the preliminary stages of the proceedings. Your local bar association and word of mouth referrals are good sources for finding a competent attorney.
You should schedule an appointment to meet with prospective lawyers well in advance of your first court appearance. Make sure you understand the fee arrangement and the scope of representation. Quality representation may be expensive, but poor quality representation will cost you a lot more in the long run.
Dupee, Dupee
& Monroe:
Being charged with a DWI/ DWAI is a serious offense.
* DWI: Driving While Intoxicated is charged when a driver's blood alcohol concentration (BAC) is .08 or higher.
* DWAI: Driving While Ability Impaired is charged when the driver's BAC is between .05 and .07 or when there are other signs of impairment.
* DWAI / Drugs: Driving While Ability Impaired is charged when a driver is impaired by a drug that is not alcohol.
* Zero Tolerance Law: The Zero Tolerance law involves a person who is under 21 years old that drives with a BAC between .02 and .07.
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