Can Someone Contact An Attorney Prior To A Chemical Test?
No, they cannot. You’d think you would be able to because you don’t have to incriminate yourself, but the cop’s not going to give you that option. He’s not going to let an attorney get on the phone and advise you not to take the test because any attorney is going to tell you not to take any tests and don’t talk to anyone, so they’re not going to shoot their case in the foot by saying, “Hey, would you like to talk to your attorney so he can tell you to shut up and stop talking to me?” That’s not going to happen. So they are not going to let you know that. In DUI cases, the law is actually quite clear. At the point where they’re asking you to take the test, they’ll say they are just investigating the DUI case, so they will ask you to take a breathalyzer test.
I’ve seen on those videotapes by police officers in a DUI arrest where they swore up and down, “This is never going to be used against you in a court of law,” and of course, this is what we are watching in the court of law. So it’s okay for them to lie; as far as the judge is concerned, he doesn’t care. So you have to be smarter than that, which a lot of people just don’t have any knowledge of, and that’s why they would talk because they probably haven’t been in that situation before. If they had been in that situation before, they would know to keep their mouth shut, but the police officer’s going to say, “No, you do not have the right to talk to an attorney at this time because I haven’t arrested you yet,” and that’s the line they’ll use all the time.
They’ll say, “Technically, we are doing an investigation because we think there’s probable cause under all of the circumstances to believe that a crime may have been committed or a crime is about to be committed.” So they are allowed to hold you and question you without an attorney even though they’re not arresting you. Now, it becomes a factual question when have you been arrested. Then you are getting into more legal jargon about, “Have I been arrested or have I been seized; and as far as the Constitution is concerned, are my rights starting to come into play?” So the standard is when someone has been seized, or I’d say what most people consider under arrest is when a reasonable person would feel they no longer have the ability to walk away from that situation.
For example, if you say, “I am not talking to you; I’m leaving,” you know the cop’s not going to say, “Okay, have a nice night, climb back in your car drunk and I hope you don’t kill anybody.” Instead they’re going to say, “You’re not going anywhere.” The minute you don’t follow their instructions, you’ve just committed obstructing or resisting arrest, and they’re going to have more charges against you. So when a reasonable person would say under the circumstances, “I’m not free to leave,” that’s when an arrest or seizure is taking place. So, for instance, if you get pulled over by the flashing lights and the officer tells you, “Okay, give me some information and get out of the car,” at that point, you’ve been seized and are not free to leave.
If you try and leave, it’s not going to happen. They’re going to arrest you right away and charge you with more things. So it really depends on what the officer says. In court, if the officer says, “No, she was free to leave anytime,” then I get to cross-examine him. I say, “Really? She would have walked away, and you would have let her walk away at that point?” A reasonable judge would say, “No, she wasn’t free to leave. The lights were on, the officer pulled her over, and her car was blocked by the police car, so she was not free to leave.” That’s when other rights start to kick in. So it really is a question of what a reasonable person would believe under those circumstances: were they free to leave? If not, you’ve been seized, you no longer have the freedom to leave, and that’s when your rights start kicking in.
What Paperwork Do People Have When They Are Released From Jail?
It depends, again, on how good the police officer is in doing his job, but typically, he’ll leave you with all the information you need because he has some paperwork for you when he turns you over to jail. If you’re getting released from jail, the police officer doesn’t wait around for you to get released. Now, if you’re getting released from a local police station, the officer might be the one issuing the tickets and should give you everything right there on the spot. But I’ve had many times where the police officer just gives out a couple of tickets, but doesn’t give them the motorist warning and the summary suspension notice even though he’s supposed to give you everything you’ve just been ticketed with or you’re getting warnings for.
That’s what you should get. When you’re leaving the jail, of course, they give back your personal property and all of that, but a lot of times, they just wash their hands of it and say, “Okay, not my problem anymore. There is the door, see you later.”
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