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When You Are Speaking To The Police, When Is Your Statement Protected By The Miranda Rights?

Interviewer:  Do you find that many people do not realize that should talk to an attorney first?  When are people protected by their Miranda rights?

Eric:  Usually the reason that the police are coming to talk to the individual is because the police don’t have certain information. There are holes in their investigation. They don’t have enough information or enough evidence or enough to even come and arrest my client. But by my client talking to the police officer, they fill in the blanks and now the officer has enough to arrest the person.

Your Statements Are Not Protected by Miranda Rights If You Were Not under Arrest at the Time

Of course, because the person was not under arrest, because they were not subject to interrogation, their constitutional rights did not attach and they have no right to remain silent at that time. They have just regular rights like you and I have at all times against the government.

We have the first amendment right of free speech which means we can speak to anybody we want to talk to or not talk to anybody we don’t want to talk to. If you choose to voluntarily talk to the police officer, anything you say can and will be used against you.

When Is the Best Time to Contact Your Attorney?

Interviewer:  Do you get most of your calls before someone is arrested or after?

An Example of When to Contact Your Attorney during a DWI Investigation

Eric:  I would say that probably majority of times I am contacted after somebody is been arrested. The preference would be, obviously in any case, let’s talk about a driving while intoxicated case and then work into some of the other categories.

In New York, Individuals Have the Right to Refuse to Undergo Certain Testing during a DWI Investigation

With driving while intoxicated case, it would be great if the client would call me before they subject themselves to any tests that the police ask them to take. This is because most people in New York don’t understand they have a right to refuse to take these tests. There are certain benefits as well as certain detriments when one refuses the testing and when one takes the test.

Your Attorney Can Advise You on How to Answer Police Questions and If You Should Submit to Testing during a DWI Investigation

Have they spoken to a lawyer first, that individual under those circumstances can then have an opportunity to decide what is best for them, including what to answer when the police officer says to them, “Have you been drinking tonight? Where you’re coming from? Where you’re going to?”

Regarding the whole general line of questioning, the courts have decided now in New York, when it is conducted at the roadside, are not considered interrogation, even though it is my opinion that it is.

When a client says, “I’m coming from the bar and I’m going home and I had drinks tonight.” It would be my advice not to say that before an arrest. After an arrest, it’s easy. They’ve been arrested, they have now been read their Miranda rights and the majority of the people exercise their right to remain silent.

The Police May Pursue a Line of Questioning before You Can Consult with an Attorney and May Deliberately Mislead You

In a regular criminal case, the police officer will question somebody they arrested. Usually they are read their Miranda rights. Of course, we would always like for the person to talk to the lawyer first. This is because the police officer will tell them, “If you talk to us it’ll be better for you. We’ll talk to the district attorney and we’ll let you go home. We’ll tell the judge.” They might say other statements to the suspect that aren’t true.

It Is a Natural Response to Answer Police Questions but People Tend to Divulge Too Much Information

When people know they have a right to remain silent but then are asked a question, many times they freely answer it. They divulge too much information to the police officer and that becomes a major issue with their case when they realize that the officer was lying to them.

Of course, the pre-arrest was the example we were talking about where the detective calls the person on the telephone or comes to the house, and of those cases, about 50% of the people begin to talk to the detectives. By the time they realize their mistake, they’ve already said information that would be better off left unsaid.

Interviewer:  Once someone has been arrested, will they call you or will their family call you?

Eric:  If the person is in jail, the majority of the time the family will call me. If the person is released from jail, for example, after having been charged with driving while intoxicated case where the person is seldom held in jail, they usually call me.

By Eric Sachs