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Don’t be afraid to remain silent?

Posted by Terry A. Wapner | May 21, 2013 | 0 Comments

One of the most common statements DUI clients make is, “What if they didn't read me my rights?” This question is generally posed in a way that clearly suggests that the client believes that not reading them their rights will somehow get them out of this problem.

There is no question that there is a misunderstanding on the part of the client about what “reading their rights” means. In fact in every occasion where I have questioned the client as to what the rights were, they parroted these rights exactly as they heard them on television police or detective shows always starting off with: “you have the right to remain silent . . . . .”

Remarkably however, it's the right to remain silent people don't understand and, most often, fail to invoke. It seems to me that people, knowing they have a right to remain silent, would rather lie than remain silent.  Lying and remaining silent are two completely different things with two completely different consequences on a case.

A lie takes away from the client's credibility as well as proposes to a jury that the fact the client lied could suggest the client had some knowledge of his or her guilt. In fact if it is established through trial that a defendant may have lied, the jury is given an instruction that they could consider that to be consciousness of guilt.

Whereas, remaining silent is just that.  A jury can't ever be informed that a defendant chose to remain silent or invoked his rights under the 5th amendment to the constitution to remain silent. The fact that a defendant chose to remain silent may NEVER be commented upon.

So it is important to not only be able to say the Miranda Rights like they do in the television shows, but, more importantly, to understand those rights, especially the right to remain silent.  First don't be afraid to invoke the right.  Cooperating with the police when you are the target of an investigation does not mean you have to speak to them. Let the police know you “won't answer any statements without an attorney present.”

Second, recognize WHEN you need to invoke these rights.  If you are stopped by police and the officer tells you he stopped you for speeding, a question regarding alcohol use is a sign that you should remain silent. If you are asked to perform ANY type of physical field sobriety test after you are stopped for speeding, then you respectfully refuse to do that. That includes following an officer's finger or pen with your eyes!

If you are asked to blow into a hand-held breath machine BEFORE you are placed under arrest, then you respectfully refuse that to.  Since you have consented to a chemical test when you got your driver's license (implied consent), you should take a test, but ONLY AFTER you are arrested.  If you refuse to take a post-arrest test, you will likely lose your license for a year or more.

Lastly, be respectful while still staying strong. There is no reason to be rude to a police officer. In fact, it can prove to be a very bad idea. But don't give in. Remain silent. Refuse those things you are legally allowed to refuse. Invoke your rights.

About the Author

Terry A. Wapner

Terry A. Wapner confines his practice to the defense of persons accused of driving under the influence of alcohol and/or drugs, and related crimes.


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