right to an attorney and false arrest?

[chevy372]

Not necessarily true. It depends on the nature of the drug. And, you are not going to be legally under the influence for the full 72 hours that it takes the typical CNS stimulant to work through the system.

Plus, the concentration may well fall below the accepted standard set to establish impairment in as little as 8 hours (depending on quantity and substance used). Thus, there IS an exigency.



Not true. At least not in CA. If that were the case, I could be arrested for taking prescription meds.

Not true in this situation. The charge was a violation of H&S 11550 which refers you to drugs listed in sec. 11054 and they are a narcotic, not alcohol that dissapate quickly like you state. These drugs take at least 4 days to get out of your blood stream. The charge was not impairment, it was being under the influence. If it happened to be below the accepted standard they can still use this evidence to support their case which is under the influence. I was NOT driving a vehicle, I was sitting on a couch in a house. There was no danger to the public at large I was not driving a 2 ton vehicle that can kill people, I was not with anyone else but me AT THIS time. As to you being arrested for taking prescription, you surely know that this is an exception to H&S 11550 and in fact Officers are trained to ask that question first. In fact the Officer asked me that question first. Your only addressing about impairment, but 11550 has two crimes: "11550(a) No person shall use, or be under the influence....." Since the DA has not filed yet, we will have to see, but I'll bet you that it is "use" and it is much tougher to prove than "under the influence" especially since I was not demonstrating (by driving strange, or if not in vehicle, walking down the street funny or giving the public something to worry about by shouting at them or something. I was just sitting on a couch in a house by myself)

Read more ... the courts have consistently ruled that this is not testimony. We take rape kits from suspects without warrants and can take blood, breath and urine without warrants as well. For DNA you'd have a point - it won't degrade or change with time. But intoxicants and biological evidence (such as with sex crimes) CAN degrade.

You cannot take a rape kit from a suspect, you take a rape kit from the victim, who in fact wants to give it to you. Now when they try to get the blood or DNA from the suspect to match it up to this rape kit evidence, (sperm, fluid, blood, hair left behind, etc...) guess what, THEY HAVE TO GET A WARRANT, or if by chance there is a cigg butt or some other thing that is in plain view or incident to arrest or a previous DNA on file then yes they don't need a warrant to pick that up. But if they want to forceably take that DNA/Blood from the suspect and don't get a warrant from a judge then it is fruit of the tainted vine and the courts are quite clear on this.

Actually, we act based on what we believe to be probable cause and then a judge decides later if that was the case. When we make an arrest, a declaration of probable cause accompanies the arrest and booking for a judge's review later.

Everything you said here supports what I said...."That the judicary not the executive branch of government makes and determinations on what is or is not probable cause. An officer may file what you said "declaration of probable cause" but let me ask you this. Where does this declaration get filed? Well of coarse it gets filed to the judge or the DA who submits it to the judge. And why do they do this to see if the Judge/Judicary will make a finding of probable. Officers CANNOT make this determination.

He may arrest on probable cause. If the officer believes that probable cause exists to make an arrest, he may certainly do so. I don't have to call the judge in the middle of the night and ask if I may handcuff someone.

Here you go again, we just agreed that only the judicary can determine PC. An Officer can have reasonable cause, reasonable suspicion, suspicion, but cannot make a finding of probable. Otherwise why do they have a probable cause hearing? Because when someone is arrested WITHOUT warrant the Constitution requires it. Even if the DA files an "Information" this is still just the DA saying I have information and belief that probable cause exists to bind/hold this person over for trial. When the DA files this Information, guess what, the defendant has the right to....what? A PROBABLE CAUSE HEARING. This is so the other branch of government who is entrusted with our rights (the legislator makes the laws, the exective enforces the laws and the JUDICARY decides if both those two branchs did their job) the judicary branch, can make sure we don't have tyranny happening again as in 1776. Which I do believe we have today.

Your arrest and your booking process are not part of the court process. The attorney comes later. All your request does is tell the officers that they may not interview you or use anything they solicit from you in violation of Miranda against you.

I can tell that you are sincere in your beliefs and are probably a very good Officer, (My father was a police officer, my brother was a sheriff and my sister is an officer) but you have to know that THE ONLY WAY TO GET INTO THE COURT PROCESS (Criminal) is to be arrested and booked. You also know that signing a ticket (criminal) is only the Officer letting you go OR'd as long as you promise to appear. The ONLY way you can get into court on a criminal charge is by getting arrested/booked and it is THE FIRST STEP in the court process. The attorney comes now, right now as soon as that Officer stops me or detains me the process has started. I cannot just magically appear in front of a judge one day and say "your honor I would like to plead not guilty to the charge....oh yeah what is the charge?" Common on now, this is the very first step in the criminal process.

They were not arrested. They did not ask for an attorney at booking. They were asked to come in and make a statement. Your situation is way different.

Close but no cigar.....It is the exact situation I had. Your right they had not been booked and still haven't. So are you saying since "I WAS" booked I was not entitled to a lawyer, but since the Ramsey's have NEVER been booked they are? This make no sense at all. You say that they were just asked to come in and make a statement. Guess what? The Officer asked me to come on over here and make a statement. Same facts no different.

Had you been interviewed after requesting an attorney, you'd have a point.

I was interviewed/asked questions after I envolked my right to remain silent. The Officer asked me many more questions....I was smart enough to know that 'I DO HAVE A RIGHT TO REMAIN SILENT' and he was met with just that.....silence. I never said another word to that Officer, except that every time he asked me something/interviewed me...I repeatly asked for my attorney, which is my right. If I had been driving a dangerous weapon (car) then yes I would not have had the right to an attorney before or during the requested test...YOU ARE RIGHT. But if we take your position, ANY OFFICER ANY TIME CAN STOP ANY PERSON ON A STREET, IN THEIR HOUSE ANYWHERE and say Hey come over here I want to give you a test.....This is still America isn't it?

Defendant in error
Paul

 

[CdwJava]

Okay ... fine ... as an expert in the field of drug influence and intoxication I know nothing and you know everything.

Well, good luck. You'll need it.

I'm done.

- Carl

 

[chevy372]

Well unless this Policeman is a judge, judge pro tem, etc the Officer is not part of the judicary branch he is part of the executive branch and ONLY a judge or Grand Jury can determine probable cause. The Officer may have reasonable cause, reasonable suspicion, suspicion, but he cannot make a determination of probable cause.

The cops are a branch of the judiciary and make determinations of probable cause all the time. The court will tell the cop if he is right or wrong in that determination.

I don't know where you went to law school your honor, but you need some remedial classes. No cop determination of PC. Your honor, have you ever heard of a probable cause hearing? Does the Officer sit way up there with a black robe on? I don't think so. Cops DO NOT DETERMINE PROBABLE CAUSE. If they do then I guess we have been wasting our time with the Grand Jury and all these Probable Cause Hearings when someone is arrested without a warrant. Hey maybe you can make a suggestion, seeing as how you are a senior judge and all and let the judicary know that they don't have to hold probable cause hearings anymore and we can all save a lot of money and get us out of debt. I won't even say that you took my idea. As to your statement that cops are a branch of the judiciary (sic). Did you flunk your government class in college and law school? What kind of idiot oddic statement is that. The cops work for the executive branch of any government in the USA. If cops determined PC then why ever mention the probable cause in the fourth amendment? No need, will just go back to old england and let them pull us from our houses and sit in jail with no charges being filed. Heck they are the judge, jury and executioner, no need for anything else. Better do some studying judge.

Defendant in Error
Paul

 

[LawGirl10]

"I carry all of my rights with me at all times and never waive any of them. Just because an Officer tells you something does not mean it is "the law". But yet they "illegally practice law" without a license everyday by telling a suspect what the law says."

You did waive your rights. It was right there in your first post.

Golly gee, I can't believe some brilliant litigator never realized police were "illegally practicing the law." I can't believe it hasn't come up before now. What they do and the information they inform you on is not the practice of law.



"The Supreme Court does not interpert the Constitution, (is it written in Spanish?) they apply the Constitution to the case in front of them."

Yes, they do interpret the Constitution. The word "interpret" is used in the legal field far beyond what you think it means. "Interpret: to explain or tell the meaning of: present in understandable terms, to conceive in the light of individual belief, judgment or circumstance." Merriam-Webster's Collegiate Dictionary. The word interpret is not limited to translating a foreign language.

The justices of the U.S. Supreme court do not just apply what you think they Constitution says. They do not look at the document, look at a set of facts and just apply it. Their "interpretation" goes far beyond that. They also look to see what rights may or may not eminate from the Constitution even though they were not specifically written into the constitution. Roe v. Wade is an example. You won't find the right to an abortion in the constitution. The concept of plain view is not in the Constitution. Miranda rights are not listed in the Constitution. If the Constitution were as simple as you seem to think it is, you wouldn't find 10,000+ entries on the meaning of search and seizure, how to apply the First Amendment in defamation cases, and whether or not certain Amendments in the Bill of Rights even apply to you as a citizen of a state.


"I know that law school only has a one semister class called "con law" wherein you study the Constitution, yet all laws/regulations/statutes must be in harmony with the US Constitution or they are void ab initio. "

I'm glad you know that. But you might want to tell the law schools that. There are two semesters of required Con Law in most schools and many students take more classes specifically geared toward the Constitution. And, just in general, many of the classes in law school deal with Con Law, not just the ones labeled Constitutional Law.

"The facts are simple in this case. Two Officers came to the door of a house (no implied consent law applies) to give results of the report filed against his wife. I just happened to be on the couch and heard the whole thing. They started telling him "we are not babysitters and you need to stop reporting 'every' little thing that happens." Next thing you know they are requesting a field soberity test. After arresting him for refusing they next come back to the house and tell me "Your friend just admitted he is using "meth" and wants help, so we are arresting him and he wants you to lock up his house". He then started in the house, as I was pulling the door closed. He said hey your buddy needs his keys (Officer Singleton had his keys) I said he has his keys. He next said "hey save your buddy some money and turn off the lights". I said he makes enough money I just want to lock up his house as he requested me to do. The officer says hey just leave one on and turn off the other. As I was turning off the light, the Officer is shinning the light around the apt. I then came over turned on the front room light and said "hey man my friend has asked me to lock up his apt, go ahead look is there anything here?" He then looked around (did not come past living room) and said ok lock it up. Ask I shut the door and turned, he was ahead of me, he turned around and said why don't you step over here and then it began.[/QUOTE]"

Yes, the facts are simple in this case. Implied consent does not even enter the picture. This was not a DUI. However, an officer can legally request a person do tests to determine evidence of alcohol or drug use if they had a reasonable suspicion to believe he was under the influence, or they can arrest him for being under the influence if thier observations (even without tests) amount to probable cause. If he was stupid enough to step out of the house, he is fair game. If he didn't go out on his own, then you may have an issue.

Likewise, if you voluntarily walked out of the house, you are fair game.

I am seeing some details creep into your later posts that were not present in your first post. If you actually think something was done wrong, then you need to hire an attorney. He/she can clear up your misconceptions about what the law may be in your case and in your specific state and he/she can assess if you have any legal grounds to challenge any issue that arises.

 

[LawGirl10]

And just to clear up a misconception that you keep insisting upon. The 6th Amendment does not apply with the facts that you described. The 6th Amendment does not apply until you are formally charged in a court of law (indictment). You are getting your 5th Amendment right to an attorney (which is distinct from the 5th Amendment right to remain silent) mixed up with the 6th Amendment right to an attorney. There is a BIG difference. Look it up.

 

[chevy372]

Read the Constitution and CASE LAW interpreting the constitution before you make statements about the constitution "lying to you."

I was just joking about the constitution "lying to me" guess it didn't go over too good or maybe I don't have the best sense of humor.

Just in general, your Miranda rights under the 5th Amendment are not implicated until you have custody and interrogation (both of them must occur). I don't see any evidence of interrogation.

Your right I did not give enough (or didn't state them well) facts. All though your statement is not true. Anyone can involk their right to remain silent at any time or at any stage of the proceedings. The proceedings start the minute an Officer switches from asking you questions as a witness and starts questioning you as suspect. But I think what you actually mean to say is the courts are allowing the Officer's to not read rights unless they have you in custody and then interrogate you for facts they need to make their case. Which is basically going back to pre Miranda.

Your right to an attorney under the 5th Amendment is not implicated just because you were arrested. As long as they don't interrogate while you are under arrest (or custodial situation that rises to the level of an arrest type situation), they don't have to provide you with an attorney.

I don't believe that I insinuated that when they placed me under arrest that at that time is when my 5th amendment right to an attorney began. If I did I am sorry I gave you that impression. But lets look at the facts for a moment. An Officer who is not there to talk to me, does not see me at all for his entire stay of 30 or 40 minutes (they are outside talking to my friend they did come to see) and then I answer the door as he wants to tell me "they are taking my friend to jail and he wants me to lock up his house." Between the time it took the Officer to tell me those words and about 15 seconds more for me to turn off the lights and he has reasonable suspicion, cause, suspicion or whatever you want to call it, that quick to make a determination that he wants to give me a field soberity test? So in less that a than 30 seconds, thirty seconds that I only said maybe ten words and his mind is made up? I am forced to come out of the apt and now come to find out I have no right to an attorney, no right to remain silent? I think I would want to Live in Russia if that is the way it is, that is not America. Remember I am not driving a 2 ton machine that could kill someone if my reactions are impaired by drugs/alcohol, I am not even coming in contact with the public, I am sitting in a house that at the time of arrival I had been at for approx 15 minutes. I don't see this case going to the first appearance.

Likewise, you do not have a self-incrimination issue under the 5th Amendment when they asked you to submit to chemical or field sobriety testing. The tests are not considered to be testimonial in nature so they do not implicate the self incrimination issue.

My arguement, although not well articulated is that 5th ("...nor be deprived of life, liberty or property....") protects my property (my blood) and my liberty he is stopping me from walking away. I think that the SC is clear in this area, if you can't walk away you are in their custody. Although as you say, it might just be detained, if I ask and they won't let me walk away, I am for all intense and purposes under arrest.

The 6th amendment right to an attorney (which is distinct from the 5th Amendment right to an attorney) is not implicated until you have been indicted. You were not indicted. You were merely arrested. There is a difference.

I am sorry if this is a novel idea to you but MY defense starts the second I am not free to walk away. To refute your position, I would point to the Jon Beny Ramsey case. The Officers/Detectives questioned the parents the day of the murder, then (Before interrogation, before any blood tests that the detectives were requesting they got an attorney) they asked them to come in for futher questioning and to take blood from their bodies (sound familar) they got a lawyer. Maybe it was because they were not driving a car as is every case I have read, regarding this forced urinalise, which would tend to make me think that the forced UA can only apply if there is an implied consent?

Defendant in Error
Paul

 

[LawGirl10]

I was just joking about the constitution "lying to me" guess it didn't go over too good or maybe I don't have the best sense of humor."

That's ok, sometimes it is hard to tell on internet forums.




"Your right I did not give enough (or didn't state them well) facts. All though your statement is not true. Anyone can involk their right to remain silent at any time or at any stage of the proceedings. The proceedings start the minute an Officer switches from asking you questions as a witness and starts questioning you as suspect. But I think what you actually mean to say is the courts are allowing the Officer's to not read rights unless they have you in custody and then interrogate you for facts they need to make their case. Which is basically going back to pre Miranda."

You are correct, you can invoke your right to remain silent at any time, but the ramifications of what happens with the police are very dependent on when it happens. For example, if a police officer were to come up to you on the street and start questioning you and you invoke your right to remain silent, he can still keep questioning you. If you then confessed to something, they could use it in court as long as the court determined that the continued questioning did not involve a coercive factor. Whether it was coercive (and therefore, an involuntary) confession is not automatic just because the officer continued to question you. It is a fact determination.

Under the 5th Amendment, officers are only required to administer Miranda when you are in custody and being interrogated. Both must occur. The determination of whether there is in fact custody, as you noted, is not always obvious. It can often just rise to the level of detention. I am with you on this point, however. I think that many more situations arise to the level of custody than many people think. However, even if a situation were deemed to be custody and interrogation requiring Miranda, incriminating statements cannot be used in the prosecutor's case in chief, but they can be used to impeach the defendant if he/she takes the stand. And, as I noted earlier, the rights to an attorney under the 5th Amendment (requiring custody and interrogation) are very different than the 6th Amendment right to an attorney. If you are in a 5th Amendment situation and you invoke your right to remain silent, in certain circumstances, the police can come back and question you and any incriminating statements made at that time can be used against you. However, if you are under the 5th Amendment and invoke your right to an attorney, they cannot come back later and question you.

Under the 6th Amendment, your right to an attorney there does not come up until you have been formally indicted in a court of law. Mere arrest or detention is not enough. If the police question a suspect after the 6th Amendment takes over, any confessions made after that time cannot be used (I can't remember right now if they can be used to impeach). However, they can come back and question you about a different crime, even if you are under the 6th Amendment protections. Example, you were arrested for drugs, indicted for the drug charge, but they come to you to question you about a theft (where no indictment has taken place. That is perfectly legal because the 6th Amendment is crime specific.


"I don't believe that I insinuated that when they placed me under arrest that at that time is when my 5th amendment right to an attorney began. If I did I am sorry I gave you that impression. But lets look at the facts for a moment. An Officer who is not there to talk to me, does not see me at all for his entire stay of 30 or 40 minutes (they are outside talking to my friend they did come to see) and then I answer the door as he wants to tell me "they are taking my friend to jail and he wants me to lock up his house." Between the time it took the Officer to tell me those words and about 15 seconds more for me to turn off the lights and he has reasonable suspicion, cause, suspicion or whatever you want to call it, that quick to make a determination that he wants to give me a field soberity test? So in less that a than 30 seconds, thirty seconds that I only said maybe ten words and his mind is made up? I am forced to come out of the apt and now come to find out I have no right to an attorney, no right to remain silent? I think I would want to Live in Russia if that is the way it is, that is not America. Remember I am not driving a 2 ton machine that could kill someone if my reactions are impaired by drugs/alcohol, I am not even coming in contact with the public, I am sitting in a house that at the time of arrival I had been at for approx 15 minutes. I don't see this case going to the first appearance."

Unfortunately, yes, a determination of reasonable suspicion can be made that quickly. I know it sound strange, but it can happen, especially when drugs or alcohol is involved. However, it seems like your case and the case of your friend might hinge on whether you both voluntarily went outside. That could make a big difference.



"My arguement, although not well articulated is that 5th ("...nor be deprived of life, liberty or property....") protects my property (my blood) and my liberty he is stopping me from walking away. I think that the SC is clear in this area, if you can't walk away you are in their custody. Although as you say, it might just be detained, if I ask and they won't let me walk away, I am for all intense and purposes under arrest."

In several court cases, it was determined that blood/urine, etc. is not testimonial in nature so it is not protected under the 5th Amendment. However, the issue you need to look into is if they had a legal right to be where they were when they asked you to submit to it and if you voluntarily came out of the house.

As far as detention, it really is not always clear. There is a very fine line between detention and custody. Even when you are not free to leave, it can be seen only as detention. And then again, change just one factor and it can become custody. There are thousands of cases discussing this issue.


As I said earlier, you should really go to see an attorney. Try to get a copy of the police report and anything they will let you have (sometimes they will let you have it and sometimes they won't) and take it to an attorney. It would be more helpful for them to see it from your side as well as the police to make a good assessment on your standing to challenge any issues that may arise.

 

[chevy372]

You are correct, you can invoke your right to remain silent at any time, but the ramifications of what happens with the police are very dependent on when it happens. For example, if a police officer were to come up to you on the street and start questioning you and you invoke your right to remain silent, he can still keep questioning you. If you then confessed to something, they could use it in court as long as the court determined that the continued questioning did not involve a coercive factor. Whether it was coercive (and therefore, an involuntary) confession is not automatic just because the officer continued to question you. It is a fact determination.

First let me say that the last posts were much more civil and intelligent and I am sorry for my part in the first post. Now above you agree that I can invoke my right to remain silent at any time and we now agree on that point. I involked mine as soon as he asked me to turn around and put my hands behind my back. Only evidence taken at this point (cuffs on and he has stated I am under arrest) is observation and the results of DAR, pulse, pupil reaction, counting to 30 seconds with head back and some test where you follow his finger without moving your head, just your eyes. I involk my 5th he says can't do that I will take you to station and show you that you don't have right to remain silent. I remain silent the rest of the time except to continually say (when we get to station not booking at sheriff's, he comes over and asks me to sign a paper agreeing or refusing to a UA) I respectfully refuse to answer that question pursuant to the 5th amendment. You state above that there are "ramifications" and go on to state a few. The few you state are that the suspect did not continually demand his right to remain silent and in fact talked, now a determination must be made by a court as to whether or not to allow such statements. Here there were no statements made by me except to demand my right to remain silent again and again. The Officer did not take or force a UA from me, they have nothing. He just said I could sit there all night until I put my initials on this piece of paper stating I am refusing to take another test (UA) and this refusal would be used against me in court as evidence of my guilt. Well on his third trip into holding cell, without saying anything I took the pen from his hand and put the initials TDC on line next to "refusal to take test" The officer said hey that is not your initials, I said I know it stands for "threat, Duress, and coercion". He then checks with someone and next thing you know my buddy (he did initial paper with his initials) and I are on our way to SLO Sheriff to get booked. So I would consider your statement above, "there are ramifications" wrong but your explaination of those ramifications right another words, If you don't exercise your right to remain silent at all times after involking, there are ramifications. You are also right that they can and will continue to ask questions. Problem here is I exercised my right and made no statements and gave no evidence.

Under the 5th Amendment, officers are only required to administer Miranda when you are in custody and being interrogated. Both must occur.

You are right and I was in custody taken five miles from scene in cuffs on the way to county jail to be booked and they were interrogating me at their station house, not sheriff's were all people are booked, but getting no response. I am no longer being detained at the scene, he has stated I am under arrest. (paper I initialed with TDC is obviously not confession) I really agree with your statement that many more situations arise to the level of custody than many people think and also that the 6th amendment right to an attorney ONLY applies AFTER prosecution is started. It is very clear it states "In all criminal prosecutions...." Officers do not prosecute, therefore you are correct.

Unfortunately, yes, a determination of reasonable suspicion can be made that quickly. I know it sound strange, but it can happen, especially when drugs or alcohol is involved. However, it seems like your case and the case of your friend might hinge on whether you both voluntarily went outside. That could make a big difference.

You may be right, but I know a DA would not take this one to the box (jury trial) with no UA, no refusal to take a UA, no confession, just officers observation of 30 to forty seconds (the rest is just the results of the tests I took at sceen) and just one out of three field soberity tests flunked. They have nothing to present to a jury execpt an officer who I found out today has only been on the force for three months. Side bar--Gentlemens bet: I say I won't even have to appear at my first appearance on March 23. Yes or No? I am calling DA next week and sending letter describing only the facts and see what he wants to do. I will only take full dismissal before first appearance.

In several court cases, it was determined that blood/urine, etc. is not testimonial in nature so it is not protected under the 5th Amendment. However, the issue you need to look into is if they had a legal right to be where they were when they asked you to submit to it and if you voluntarily came out of the house.

Very good point re: voluntarily departure from house and you are right....if they had obtained any evidence they can use besides the Officers observations of results from test....he can say I did this and I did this, but the fact of the matter is the results don't lie and if in fact I did pass three out of four tests I will be walking free. Fact of the matter is I was not on any drugs listed in 11054 or any other statue that 11550(A) lists. The PD allows release of the police report ten days after arrest in this case and yes I will get a copy and if Officer did not lie in telling me I passed three out of four FST I am walking...I mean how in the world would a jury believe his testimony? I will also have a hair folicual test preformed to show all drugs in my system over last 3 or four months, there will be no Meth or other drugs showing up. Yes I will do that before first appearance.....by licensed professionals and within two weeks of my arrest should be admissable and trust worthy.

 

[LawGirl10]

********************NOTE***********
I do have replies to what is boxed below, but for some reason, it is in the box below and didn't come up the way it usually does. So, look for the separations in your quotes below.



"

First let me say that the last posts were much more civil and intelligent and I am sorry for my part in the first post. Now above you agree that I can invoke my right to remain silent at any time and we now agree on that point. I involked mine as soon as he asked me to turn around and put my hands behind my back. Only evidence taken at this point (cuffs on and he has stated I am under arrest) is observation and the results of DAR, pulse, pupil reaction, counting to 30 seconds with head back and some test where you follow his finger without moving your head, just your eyes. I involk my 5th he says can't do that I will take you to station and show you that you don't have right to remain silent. I remain silent the rest of the time except to continually say (when we get to station not booking at sheriff's, he comes over and asks me to sign a paper agreeing or refusing to a UA) I respectfully refuse to answer that question pursuant to the 5th amendment. You state above that there are "ramifications" and go on to state a few. The few you state are that the suspect did not continually demand his right to remain silent and in fact talked, now a determination must be made by a court as to whether or not to allow such statements. Here there were no statements made by me except to demand my right to remain silent again and again. The Officer did not take or force a UA from me, they have nothing. He just said I could sit there all night until I put my initials on this piece of paper stating I am refusing to take another test (UA) and this refusal would be used against me in court as evidence of my guilt. Well on his third trip into holding cell, without saying anything I took the pen from his hand and put the initials TDC on line next to "refusal to take test" The officer said hey that is not your initials, I said I know it stands for "threat, Duress, and coercion". He then checks with someone and next thing you know my buddy (he did initial paper with his initials) and I are on our way to SLO Sheriff to get booked. So I would consider your statement above, "there are ramifications" wrong but your explaination of those ramifications right another words, If you don't exercise your right to remain silent at all times after involking, there are ramifications. You are also right that they can and will continue to ask questions. Problem here is I exercised my right and made no statements and gave no evidence. "

In general, your understanding of the "ramifications" are correct. However, you did give evidence against yourself that is not protected by the 5th Amendment. The officer's general observations about you for the short amount of time is what will be used to gauge reasonable suspicion. That is considered evidence. If the court feels his suspicions about any possible drug/alcohol use were correct, then he ok from a legal standpoint to detain you further and ask you to do the field sobriety tests. Additionally, the field sobriety tests are considered evidence and are not protected by the 5th Amendment. Again, it is going to come down to whether they were in a lawful position to make those observations and why you came outside.



"You are right and I was in custody taken five miles from scene in cuffs on the way to county jail to be booked and they were interrogating me at their station house, not sheriff's were all people are booked, but getting no response. I am no longer being detained at the scene, he has stated I am under arrest. (paper I initialed with TDC is obviously not confession) I really agree with your statement that many more situations arise to the level of custody than many people think and also that the 6th amendment right to an attorney ONLY applies AFTER prosecution is started. It is very clear it states "In all criminal prosecutions...." Officers do not prosecute, therefore you are correct."

Yes, at that point, there should be no argument that you were in custody.




"You may be right, but I know a DA would not take this one to the box (jury trial) with no UA, no refusal to take a UA, no confession, just officers observation of 30 to forty seconds (the rest is just the results of the tests I took at sceen) and just one out of three field soberity tests flunked. They have nothing to present to a jury execpt an officer who I found out today has only been on the force for three months. Side bar--Gentlemens bet: I say I won't even have to appear at my first appearance on March 23. Yes or No? I am calling DA next week and sending letter describing only the facts and see what he wants to do. I will only take full dismissal before first appearance. "

You would be surprised at what they will take to the court. Whether or not it actually ends up at jury trial is another matter. The fact that they didn't get a chemical test out of you is completely in your favor. Since it is not an implied consent situation, you are under no duty to take a chemical test. However, the case will again hinge on their lawful presence and the reason you went outside. If by chance (and I agree it may be questionable) they find that you went outside volunatarily, the officer's observations of your performance on the exam (if you failed all or most of them) can be enough to convict. This would be coupled with thier initial observations about you and any observations they made of you the entire time you were out there. I've seen it done numerous times. I am a law student now but I am also a former police officer and I have filed many successful cases involving intoxication (public intoxication or DUI's) with the prosecutor's office based on observation alone. Judges and juries are more than willing to place a high value on the observations of an officer and it can often result in conviction. Field sobriety tests just add to the evidence about the officer's observations. It would be much harder for them to prove their case if you either hadn't performed the field sobriety tests or if the court throws those observations out because there was a legal issue about their right to ask you to perform them.




"Very good point re: voluntarily departure from house and you are right....if they had obtained any evidence they can use besides the Officers observations of results from test....he can say I did this and I did this, but the fact of the matter is the results don't lie and if in fact I did pass three out of four tests I will be walking free. Fact of the matter is I was not on any drugs listed in 11054 or any other statue that 11550(A) lists. The PD allows release of the police report ten days after arrest in this case and yes I will get a copy and if Officer did not lie in telling me I passed three out of four FST I am walking...I mean how in the world would a jury believe his testimony? I will also have a hair folicual test preformed to show all drugs in my system over last 3 or four months, there will be no Meth or other drugs showing up. Yes I will do that before first appearance.....by licensed professionals and within two weeks of my arrest should be admissable and trust worthy.

"

I would still talk to an attorney first. I think the testing is a good idea, but I don't know all of the issues about what a court will consider as a good/reliable test, especially if it is done on your own. My first evidence class really only emphasized hearsay. My advanced evidence class (dealing with those issues) isn't until next semester. Get the advice of an attorney.

Just a question. You have every right to refuse, but if you weren't under the influence, why didn't you take the test?

 

[chevy372]

Just a question. You have every right to refuse, but if you weren't under the influence, why didn't you take the test?

To fill you in a bit more. I was at my friends house discussing the report he had just made at the PD regarding a voice message his wife had left, wherein she had stated she was going to kill herself. I was handling his divorce for him. You see I have been doing what they term "practicing law without a license" for approximately 15 years. I do uncontested divorces, BK's, DUI's where the accused wants to plead guility but doesn't have the $750 to $1500 a lawyer wants to plead them guility, and the big one taxes (IRS). In fact I have had two of the IRS cases I have handled published in the federal reporter both at the district level and then on appeal to the Circuit Level. Didn't know it at the time (thought every case was published) but in Federal Court the Judge decides whether or not a case is published. Missed having a fourth amendment issue I was handling docketed by the US Supreme Court by one vote. Don't know if you know this or not, but every Friday the Justices hold a meeting (while in session) and vote on each and every case to see if they will issue a response to be filed (this does not mean that they will hear you, just that they want to see what the opposition's response is and then another vote to see if you will get it set for a 15 or 30 minute briefing before them. Only one case I have ever seen got granted more time, (over 30 minutes) it was the contested election when Bush II was originally elected. You need at LEAST four votes to get the Court to order a response and your case on the docket, we had three. DOH.....I thought that we had a great probable cause issue with that case, but I guess we didn't perk an interest in that fourth Justice's clerk to sway them to say hey lets just see a response.
More to the point on answering your question. I was fully ready to take the UA right up until the Officer took me to the station house and gave me that piece of paper he wanted me to initial that said the following: "Examiner's Admonition of Urine Test per PEOPLE V. SUDDUTH, 65 CAL 2D 543......You have been placed under arrest for a violation of Section 11550 of the Health and Safety Code, under the influence of a controlled substance. Incident to that arrest you are 'requested' (quotes added) to submit to a urine test to determine the presence of a controlled substance in your body. UNDER CALIFORNIA LAW AND THE UNITED STATES CONSTITUTION YOU DO NOT HAVE THE RIGHT TO REFUSE TO SUBMIT TO SUCH A TEST. When you submit to such a test the results will be made available to you and if the test indicates that there is no controlled substance in you (sic) body you can and will be able to use such evidence to demonstrate your innocence; but if the test indicates a presence of a controlled substance in your body such evidence can and will be used against you (IN, not in text) court. If you refuse to submit to a urine test it constitutes a wrongful refusal to cooperate with law enforcement officers in their investigation and your refusal can and will be used against you in court as an indication of your consciousness of guilt in attempting to suppress evidence. You do not have the right to talk to an attorney or to have an attorney present before stating whether you will submit to a test or during the administration of the test." Then there were four lines two for my initials where I could put my initials either agreeing to submit or refusing to submit and two bigger lines for the examiner and a witness to sign their full signatures. My question to you is what part of this document made me decide not take a test I would pass? I will give you a hint, it is not in capital letters........? One more question for you....Have you ever heard of Judge Mills Lane? He is a professional boxing referee and a District Court (California calls them Superior Court) Judge in the State of Nevada?

 

[seniorjudge]

I don't know where you went to law school your honor, but you need some remedial classes. No cop determination of PC. Your honor, have you ever heard of a probable cause hearing? Does the Officer sit way up there with a black robe on? I don't think so. Cops DO NOT DETERMINE PROBABLE CAUSE. If they do then I guess we have been wasting our time with the Grand Jury and all these Probable Cause Hearings when someone is arrested without a warrant. Hey maybe you can make a suggestion, seeing as how you are a senior judge and all and let the judicary know that they don't have to hold probable cause hearings anymore and we can all save a lot of money and get us out of debt. I won't even say that you took my idea. As to your statement that cops are a branch of the judiciary (sic). Did you flunk your government class in college and law school? What kind of idiot oddic statement is that. The cops work for the executive branch of any government in the USA. If cops determined PC then why ever mention the probable cause in the fourth amendment? No need, will just go back to old england and let them pull us from our houses and sit in jail with no charges being filed. Heck they are the judge, jury and executioner, no need for anything else. Better do some studying judge.

Defendant in Error
Paul

Q: Your honor, have you ever heard of a probable cause hearing?

A: Yes, thus my statement: the court will tell the cop if he is right or wrong in that determination. That's a probable cause hearing.

 

[seniorjudge]

FYI only:

http://www.ago.mo.gov/publications/courtprocess.pdf

Also:

The police officer cannot search your car without your consent unless he has "probable cause". "Probable cause" is a legal determination that you won't be able to challenge until later.

Read the whole article if you wish:

http://www.alllaw.com/articles/criminal/article2.asp