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First off, the cops failure to read you your rights will not get a DUI case dismissed.

At DUI stops the fifth amendment and Miranda will possibly get your statements suppressed, if it is determined that you were in custody at the time the statements were made. This is unlikely in a DUI because of a US Supreme Court case called Berkemer v McCarty.

Berkemer v. McCarthy says that the questions a cop asks after a DUI stop are not part of a Custodial Interrogation.

The Berkemer case involved a stop where the cop asked 1 question: are you under the influence of anything?

The guy answered yes.

He got arrested.

The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions.  In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The Court held the subject was not under the belief that he couldn’t leave. The Court further held that in this case, the questions were not intrusive.

If you are arrested and questioned, you must invoke your right against self-incrimination unequivocally. This means anything other than “I invoke my right against self-incrimination,” will not be treated as an invocation. So when arrested and questioned say, “I invoke my right against self-incrimination.”

The Fifth Amendment does not relieve you of your obligation to take the post-arrest DUI chemical tests.

If you are stopped and questioned pre-arrest, the Berkemer decision says that you’re not under arrest so your Fifth Amendment right doesn’t apply.  I counsel that you should tell the cop, “Officer, am I free to go? If not, then I choose not to answer your questions.”  Any answers you give the cop will be used to build a case against you.  They are not trying to learn information so they can release you.  They are trying to get information to get a conviction.

The recent California Supreme Court case of People v Tom shows the importance of unequivocally invoking your Fifth Amendment right not to answer cops’ questions. In this case, there was a traffic fatality, the Defendant left the scene, later the cops came to his house.  They found him drinking.  They arrested him and had him sitting around for three hours. During that time he never inquired about the person who was killed. Of course, none of the cops informed him why he was arrested or that there was a fatality.  The Prosecutor commented on this in his closing argument.  This is usually Griffin Error.

The Griffin Law means a Prosecutor cannot comment on the Defendant’s post-arrest silence. But the Tom court held that because the Defendant did not unequivocally invoke his right against Self-Incrimination the Prosecutor could comment about his silence

Merely remaining silent after being arrested will not be enough to invoke your right against Self-Incrimination.  It cannot be said often enough, at DUI stops the Fifth Amendment and Miranda require that you unequivocally invoke your right against self-incrimination.

If you have an issue with the Fifth Amendment and Miranda please call me at 213-479-5322 to discuss this more fully.

Always Report Police Misconduct Police Car with Police in the background

You can sue about lying, if you win the Criminal Case.  If you lose your Criminal Case, you can’t sue. But I highly recommend that, win or lose, you utilize the Sheriff (or any law enforcement agency’s) complaint procedure to report police misconduct.  It may not help you, but it could help a Defendant in the future about whom they lie and help attack the officer’s credibility at trial.

Every law enforcement agency has a procedure for complaining about an officer’s behavior.  Any thing you can complain about a co-worker about, you can complain against a cop: lying, cheating, stealing, physical abuse, sexual harassment, making derogatory comments, racism, etc.

Recently, a friend had a case where one cop complained about his partner.  The Lawyer was able to use the complaint to negotiate a better deal for his client because the Prosecutor didn’t want the information about the cop to come out at trial.

During a Criminal Trial,  there is a process called a Pitchess Motion wherein in defendants, about whom a cop has lied, can request that the police agency turn over all other complaints that people have made about the officer lying (or falsifying reports, or excessive force, or planting evidence).  The Motion states that what the officers have  put into their reports is false and it may suggest an alternative scenario.  The Court then rules on whether there is a discrepancy.  If there is, then Court then has an in camera (private) review of the officer’s complaint file.  If there are any complaints, they are turned over to the Defense Counsel who can then investigate the complaints and call the complainants as witnesses who will testify against the officer.

In the age of digital cameras in phones, everyone has the power  and it’s legal in in CA to record the cops. But you have to know how to do it. I diiscuss this in my article Ten Rule  of Filming the Cops.

The First Circuit Court of Appeals (Mass.) decided a case recently entitled Glik v. Cunniffe. Briefly, Glik heard someone yell and moved toward the yelling.  Seeing a couple cops beating some guy up, he started to film/record the transgression.  The cops arrested Glik for wiretapping, disturbing the peace, and aiding a prisoner’s escape.

The case against Glik was dismissed.  Glik filed a 42 USC 1983 lawsuit against the cops who arrested him.  The cops tried to defend themselves from liability by saying they were entitled to qualified immunity.  The Court of Appeal said, no.

First, Glik’s First Amendment right to record the police is clearly established.

The Court of Appeal said that the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within these principles. Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966).

Moreover, as the Court noted, “[f]reedom of expression has particular significance with respect to government because ‘[i]t is here that the state has a special incentive to repress opposition and often wields a more effective power of suppression.'” First Nat’l Bank, 435 U.S. at 777 n.11 (alteration in original) (quoting Thomas Emerson, Toward a General Theory of the First Amendment 9 (1966)).

The Court then held that Glik’s fourth amendment right to freedom from unreasonable seizure was violated as the police completely lacked probable cause to arrest him.

I tell all of my client’s how important it is to document police misconduct.  Not just by recording it if you see it, but by reporting it when it happens to you.  The Pitchess process whereby prior complaints against specific police officers are obtained and then used to impeach the credibility of the police officer is essential to mounting a good defense.  The effectiveness of the Pitchess process relies on individuals reporting abuse.

But won’t the prosecutor’s punish me more harshly if I complain?

Recently I filed to separate motions (Pitchess and PC 1538.5) in separate cases.  After I did the respective prosecutors told me they would up the offer because I filed the motions.  I told them they couldn’t do that.  One of them laughed at me, the other became petulant.

Well, they can’t do that.

See they upped the offer in retribution for filing the motions.  Nothing changed about the case, other than me pressing my client’s legal rights.

“[T]he appearance of vindictiveness results only where, as a practical matter, there is a realistic or reasonable likelihood of prosecutorial conduct that would not have occurred but for hostility or a punitive animus towards the defendant because he has exercised his specific legal rights.”) (citing Goodwin, 457 U.S. at 373, 384). The mere appearance of prosecutorial vindictiveness suffices to place the burden on the government because the doctrine of vindictive prosecution “seeks[s] to reduce or eliminate apprehension on the part of an accused” that she may be punished for exercising her rights. Ruesga-Martinez, 534 F.2d at 1369. As the district court noted, the “prophylactic” doctrine is designed, in part, “to prevent chilling the exercise of [*10] [legal] rights by other defendants who must make their choices under similar circumstances in the future.” United States v. DeMarco.

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