Monday, April 23, 2012

Criminal Charges and Hiring a Criminal Defense Lawyer: Five Ways to Avoid Both

Summer is upon us, many will shed clothing, meet friends for drinks and enjoy the warm weather that almost makes it feel like Northern New England has a climate suitable to human habitation. Many will remember those warm nights fondly, others will remember them by the criminal charges filed in the local court. Sometimes, it is just luck that separates the two groups. Still, a little bit of knowledge about the criminal law and about your rights can go a long way towards making sure that you end up sleeping in your own bed and not at the County Jail.

Of course, the best way to avoid criminal charges is to not violate the law. People have tried really hard at this but it doesn't always work: innocent people get charged with crimes, and people sometimes do things without realizing that they might be violating the law. Also, some laws are written in such a way that police have significant discretion is deciding whether a crime occurred or not. For instance, anyone who owns a screwdriver can be charged with possession of burglar's tools. Someone who comes from the job site with a utility knife in their pocket can be charged with possession of distribution of dangerous knives if the police officer thinks that the knife can be opened with a flick of the wrist. So here are a few of suggestions you might keep in mind:

1. Don't call the cops

I mean sure, sometimes people need to call the police because they are in danger or witness to a crime. Most people call the police for minor stuff and some of those people get arrested after they call. When police respond, they first talk to the caller and observe their demeanor. Police are interested in investigating all crimes, not just the one you reported. They might ask: "Have you had anything to drink? Did you drink anything since arriving at the Amato's? Did you drive this car here?" All of a sudden, the harassment charge the caller wants filed against a guy across the street becomes an OUI and Marijuana a possession case against the caller.

2. Make sure your car is legal

A large percentage of cases start with a traffic stop, usually for some minor issue unrelated to the criminal charges that end up being filed. This is especially common with Driving Charges like Operating After Suspension or Habitual Offender Revocation. If you age going to be driving, make sure your car is inspected, registered, and has all the blinkers, headlights, plate lights, brake lights and other components functioning. You don't want to have any obvious defects to the car like a loud exhaust or cracked windshield. It is a good idea to periodically walk around the car and have someone else step on the brake and turn on the directionals. And don't speed, you won't get there much faster but you will get pulled over. Also, don't use those license plate frame things. They obscure the plate and that alone can be enough to pull you over.

3. Don't consent to the search

If you are pulled over, or otherwise detained by the police, they will often ask if they can take a look through your jacket, bag, car or home. This is especially common in Drug Possession Cases. The reason they ask is because the constitution keeps the police out of these places without your consent, unless they have probable cause and, usually, a warrant. Consenting to the search means that the police can just go hunting around without any cause or any approval from a judge. Under some circumstances, the police may have the authority to pat you down to make sure you do not have weapons. Other than that, you never need to consent to a search and if you have consented, you can change your mind and tell them to stop. The cops might threaten to bring in drug dogs or detain you longer for a warrant if you don't consent. Fine. They might be bluffing and if they don't have a good reason to search you now, they they probably don't have a good reason to detain you longer to wait for the dogs or the warrant or for anything else. Their thinking is that, more inconvenient they make the situation, the more likely they are to get your consent. A judge might throw out the search if it came after an unreasonably long detention.

4. Exercise your right to remain silent

You don't need to talk to police if you don't want to. The best evidence against many criminal defendants is their own statement. When the police arrive, they start asking questions so that they can use the answers as evidence against you. Many questions might not seem to have much to do with any criminal wrongdoing but they can help build a case against you. Questions like: "Did you know your license was suspended?" and "Where are you coming from?" might help to establish elements of crimes even though they don't directly address the main conduct.

5. Don't do the field sobriety tests

Some state's call it DUI or OWI, in Maine it's OUI: Operating Under the Influence. Click the link for a more detailed discussion of OUI Charges. No matter what it's called, the investigation usually includes Field Sobriety Testing. A car is pulled over for an insignificant reason (see item two above) and the driver is asked to do roadside sobriety tests. These usually include an eye test where you follow a pen from side to side, a one leg stand test where you balance on one foot for 30 seconds and a walk and turn test where you walk out a line and back in a specific way. At least in Maine, these tests are voluntary and the police can't force you to do them, that is why they will politely ask you to "please step out of the car." You should not get out of the car and you should not do these tests. Maybe you're too tired, you strained your knee the other day, you have a bad back. The point is that you are not going to get out of the car or do these tests.

The thing is, at the time the officer asks you to do the tests, there is probably not enough evidence to arrest you for anything. Once you get out of the car and do the test, he observes your performance, your demeanor and the way you follow directions. This gives him probable cause to believe that you are impaired by intoxicants and that is what the constitution requiers before you can be arrested. If you refuse the tests, the officer's job gets a lot more difficult. and he might decide to let you go. He might still choose to arrest you for Operating Under the Influence, but all he has for evidence is a hunch and a plate light out. Your lawyer will have a pretty good argument that the arrest was illegal since it was not supported by probable cause. A judge should then throw out all the evidence obtained after that arrest. If you do get arrested, Maine law does require you to take the breath, blood or urine test. If you refuse, you will be suspended for an additional nine months and have mandatory jail time if convicted of the OUI. Do the chemical test and let your lawyer sort it out.