Queens County Bar Association
Martindale Hubbell - Distinguished 2023

Do I Have the Right to an Attorney Before Talking With Police?

You always have a right to an attorney and you always have the right not to talk to the police. So if a police officer wants to have a conversation with you about something that happened, you are under no obligation to speak with him. You always have the right to say, “I am a little nervous here. I’d rather have an attorney with me when I speak with you”. That’s true in just about any circumstance that one could think of, whether you are in custody or not.

Can Someone Contact Their Attorney Prior To The Evidential Breathalyzer In A DWI Case?

Theoretically you would have the right to do that but, in practice, it really doesn’t work out because the officer has the right to have you either take the test or not take the test within a relatively short period of time. So in practice, by the time you got to consult with your attorney, the officer would say basically that you refused to take the test, and the Court would deem that you refused to take it because you didn’t take it within the required time period. When it comes to taking the breathalyzer test, people should know that in almost all circumstances, they are better off in the end taking the breathalyzer test. There are many reasons for that covered in other parts of my website, but unless you have a prior conviction for DWI or you know that you are way over the limit, it is almost always advisable to take the breathalyzer test because you can work around that in many situations.

Once you refuse to take the breathalyzer test, then regardless of your innocence on the DWI case, you’re going to have your license revoked. For most people, it is a good idea to take the breathalyzer because you’re just not going to have enough time to have a lengthy discussion with your attorney about it.

What Are The Top Misconceptions Regarding Miranda Rights?

Probably one of the biggest misconceptions that people have about criminal law is that they equate Miranda with the right not to talk to the police. That took place way before Miranda. You have a right not to talk to the police at any time because, under the Fifth Amendment to the United States Constitution, you are not obligated to incriminate yourself to give incriminating testimony against yourself. So people have always had the right not to talk to the police. The Miranda case said that under certain circumstances (and it’s important that this is not all the time) when a person basically is in custody, in other words, they’re not free to leave, then the police are obligated to tell the person about these rights that they have.

You have a right to remain silent, that anything they say could be used against you, you have a right to have an attorney before you make a statement and, if you can’t afford an attorney, an attorney will be provided for you free of charge. Miranda was a court decision that went beyond the simple right to not say anything to the police but the Miranda warnings have to be given when somebody is in custody. Once they’re taken into custody, then they’re entitled to be warned of these rights. If a police officer is talking to you on the street and starts asking you questions, he does not have to advise you of your rights to remain silent even though you always have the right not to respond.

If Someone Was Not Read Their Miranda Rights Would Their Case Be Dismissed?

A judge would never dismiss a case simply because a defendant was not read the Miranda warnings. A lot of times, people will say to me, “Well, he didn’t advise me of my Miranda Rights, shouldn’t the case get thrown out?” My question back to them is, “Well, did you make a statement?” “Well, no. He never asked me anything, so I never made any statement.” If you never made an incriminating statement, there’s no harm done and nothing to fight. When statements are made to an officer, the defendant’s lawyer is entitled to be advised of that and that the people intend to use statements made to the officer in the trial. The defendant then has a right to ask for a hearing to determine if, before making those statements, the defendant was properly advised of his rights.

If the court determines that he was not properly advised, then they will not allow those statements to go into evidence at the trial. If those statements are the only thing that would give the court reason to convict, then the case would be thrown out but there may be and usually is other evidence beyond the statements by the defendants. The only thing that Miranda says is that if you’re not properly advised of your rights prior to making a custodial statement, then those statements cannot be used against you at trial. It’s nothing more or nothing less than that.

For more information on Talking to the Police With An Attorney, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 793-5700 today.

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