When Placed Under Arrest, How Much Should You Cooperate With Police?
Interviewer: When does it cross the line between not saying anything and resisting arrest? Is that a factor in the cases you have seen?
Aaron: I have seen officers try to claim that not cooperating is resisting arrest. Usually D.A.’s will not charge someone with that. Usually resisting, delaying is seen when someone gives a police officer false information and there are other fraud charges there. It is also when someone pulls away when the police are trying to handcuff them.
Just not answering questions? You do not have to answer questions. You can respectfully refuse to answer any questions. You can show them your license. That is the information they need. Give them your name and your license number. You do not have to give the police other information.
You just need to provide your name. Give them your driver’s license. If they need to see insurance, show them the insurance. When they say you need to choose a test because you are under arrest for DUI, you need to choose a test. Other than that, you do not have to say anything to them.
Interviewer: When are you entitled to an attorney? Are you entitled the whole time?
Aaron: You are entitled to an attorney only if they want to question you, after you have been arrested for DUI. If they want you to answer further questions, they are supposed to read Miranda.
Miranda says you have a right to an attorney. You say, “I am not answering any other questions without an attorney.” At that point, they are supposed to stop asking you questions about the case unless they provide you with an attorney.
The attorney never shows up unless there is a serious injury, a felony case or a fatality. It is such a horrible situation to be in. As an attorney, you hope your client does not make a whole bunch of statements; because they are probably in a pretty hysterical state.
Interviewer: What about fourth amendment searches? Do the police typically search a person’s vehicle or a person’s person? When are they allowed to do that? Can you deny that?
Aaron: They can if the vehicle is going to get towed for the officer’s safety. They can search the vehicle. They can search a person if they arrest you; again for officer’s safety. They will search you and they will do a more intensive search, usually once you get booked into jail.
If they have sufficient cause- if they think there are drugs in your car based on the way you are acting, if there is no alcohol in your system, or if they see something in your car- they can continue to search.
They do it all the time, and they get away with it. Every case is different there. So it has to be looked at on an individual basis.
When we talk about the fourth amendment, we talk about search and seizure. A lot of times, questions arise: Did they have sufficient cause to pull you over and do a DUI investigation?
I just won a motion a few weeks ago where the officer saw my client stop fast behind another car. His car went to the side a little bit, but not outside his lane. The officer thought that was suspicious so he followed him for two or three blocks, into a dark parking lot.
The officer put his spotlight on and walked up to the car. He asked my client if he could talk to him. The Judge I was in front of agreed with me, that was going too far. The officer did not have sufficient cause to do a search there.
My client was in a situation where he did not feel like he was free to leave. The D.A. was trying to say this was a consensual stop. It was not. Some judges might go the other way with that type of a situation. There are a lot of different defenses we bring up in a legal stop, or insufficient cause to stop.
The fourth amendment is what protects our clients and these motions, most of the time. It is not the illegal search that happens later, it is the stop. Video can be very helpful with that too. Sometimes I have a client who says, “Hey, I was not swerving.” Then, we get a video and it shows they were not swerving; or they did not go over the line like the officer said. That can help us get a better result or hopefully win a case.
Sometimes when we get the videos we see that when the officer said the person went over the line “x” number of times, the person did. I would say that happens more often than not.
I can show that to my client and say, “Look, this is sufficient cause to pull you over. We do not have a good suppression motion here.” It can help us resolve cases, as well as win cases.
By Aaron Bortel
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