I’ve Been Arrested…Now What?

As a police officer, I found that there were several people that I had to arrest who weren’t actually bad people.  While there were the “frequent flyers” who were always getting into trouble and knew the system probably better than their own attorneys, most were good people who took a left when they should have taken a right.  They simply made a bad decision one night.  After bringing them back to the station and going through the booking process, most people spent the rest of their time staring at me and waiting for me to tell them what comes next.  More than likely, you won’t get an answer to that question from the officer.

After being booked, the next step is to post bail.  The purpose of bail is to ensure the Defendant’s appearance in court.  The police will generally call a bail commissioner to come to the station for this.  The bail commissioner works for the courts, and determines whether or not to release the person on bail.  Most states allow the bail commissioners to receive a fee for their services.  This fee is in addition to any amount that the commissioner sets for your bail.  The police officer can also bring the person directly to the court, and have bail set by the judge.

In Massachusetts, there is a presumption that the person arrested should be released on “personal recognizance,” or rather your word that you will come to court when required and you will not commit any crimes while on release.  The burden is on the prosecution to demonstrate by clear and convincing evidence that the Defendant is a risk.  In a capital case, however, the burden shifts to the Defendant to show why he is entitled to liberty.

A Defendant has the right to legal representation at a bail hearing.  This is the first time that his attorney will advocate for him.  The Defendant has the right to present evidence, and hearsay evidence is allowed.  The prosecutor will argue first and, obviously, will give the court reasons as to why the Defendant should not be entitled to bail, or at least not personal recognizance bail.  The Defendant’s attorney will then argue why the Defendant is entitled to personal recognizance bail.  Ultimately, the decision will be made by the man in the black robe.

If bail is set, and it is set excessively high, the Defendant may petition a bail review hearing be conducted by a Superior Court judge.  This is a “de novo” review, or in other words a “do over.”  Again, the burden will be on the prosecution to prove that the Defendant should be denied bail.  The Superior Court judge can either raise or lower the bail at this hearing.  In Massachusetts, if a Defendant is still unsatisfied with the outcome, he/she may have a further right to review by a single justice of the Supreme Judicial Court.

As a condition of bail, Defendants are generally placed on Pretrial Probation.  If the Defendant commits a new offense while on release, his bail can be revoked for up to 60 days.  For this reason, I strongly suggest to my client that they “keep their noses clean” while on bail.

This blog is merely a brief description about what to expect with bail.  If you have been arrested for a crime, it is always best to consult with an experienced attorney.  The only person who has rights, is the person who knows what those rights are.

Reality of the Courts

Last week, I finished up an OUI case with one of my clients.  When this client first came into my office, I read the police report and listened to his version of the events.  While I didn’t completely believe everything my client was telling me, I didn’t quite buy the story the police officer was telling, and he seemed to have a fairly decent case.  The only test the police officer was able to get my client to perform was the eye test (horizontal gaze nystagmus), and that test had a good chance of being suppressed.  My client refused to do any other tests, to include the breathalyzer.  So ultimately, the only evidence against my client was the officer’s observations, and those observations could be explained in any number of ways.  There were also several holes in the officer’s story, and a few things that didn’t make sense.  However, as with any case, I wanted to see all that the District Attorney had before we started getting ahead of ourselves.

The discovery took a couple of months to get, and we were on our third pretrial hearing by the time the discovery came in last week.  All of a sudden, this really good case that I had started looking dismal.  The complete police report mentions two other officers that were on the scene, as well as the Chief of Police who had to assist my client into the booking room because he could not walk in on his own.  I also learned about two civilian witnesses and three firefighters who were on scene due to possible medical issues.  Each one of these witnesses was prepared to testify that my client was, quite literally, falling down drunk.  Although my client wanted to call this a conspiracy and attempt to prove so at trial, I had to point out to him the reality of the courts.  We were in a court that favors the police and prosecution.  I could have poked holes in the officer’s report, but if we were to go to trial, with the testimony of the witnesses against my client, there was a strong likelihood that we would have lost…bad.  And when it came to sentencing, the judge would have undoubtedly been harsh because, if for no other reason, the Chief of Police felt the need to come into court to testify in this case.  The judge would have looked at this as though we were wasting the court’s time, as well as the time of the Chief.  It wouldn’t have been pretty.

I managed to work out a really good deal for my client, but the end result is not what either of us were hoping for.  No matter how good your case is, I can’t stress the importance of waiting until that discovery comes in before making a full assessment.  You never have the entire story from an initial consultation, or from an initial police report.  There’s always more to the story, and sometimes that something more is compelling to one side or the other.  Also, you need to know your courts.  What may work in some courts won’t necessarily work in others.  Every judge is different.  Although neutral, every judge is going to look through the filter from a different perspective.  I have worked with some judges who look at all of the evidence through a filter that is in the light most favorable to the Defendant.  Others will look at it in a light most favorable to the Prosecutor.  Know which way your judge is going to lean before you fully assess your case.  And as always, consult with an attorney before trying to represent yourself.  It may turn out to be the deciding factor in your case.

The Purpose of Sobriety Checkpoints

As we approach the holiday season, you will begin to hear more often that the police “are out in force.”  As a former police officer, I will tell you that budgetary constraints do not generally allow the police departments to add officers on any given shift.  What that phrase usually means is that the officers usually working those shifts are being told to stay on the streets as opposed to spending time in the station or barracks.  However, one thing you will certainly see is an increase in the number of “Sobriety Checkpoints.”

Sobriety checkpoints are a part of the Administrative Warrant Exception to the 4^th Amendment.  The sole purpose of the Administrative Warrant doctrine is for the safety of the public.  The US Supreme Court, in Michigan v. Sitz, noted that the balance of the State’s interest in preventing drunk driving, the extent to which the system can reasonably be said to advance that interest, and the degree of intrusion upon motorists, weighs in favor of the state program.  There are, however, rules that the police have to follow in order to properly conduct a sobriety checkpoint.

In order to run a sobriety checkpoint, there must be a written, administrative policy at the police department.  That policy must dictate how the officers will stop the vehicles.  For example, the officers are to stop every car that comes through the checkpoint, or they are to stop every third car that comes through the checkpoint.  The police cannot stop cars “at random.”  Nothing can be left to the discretion of the police officer.  In Massachusetts, the SJC has added that the date, time, and location of the checkpoints must be “published.”  Further, the written policy must be on file at the police department, and must state the department’s reasons for conducting sobriety checkpoints.  The checkpoint can then only be used in connection with that policy.  I have seen policies that go as far as to require each officer have a 3×5 card on them with a specific greeting, and the greeting must be read verbatim to the stopped drivers, explaining the purpose of the stop.  However, bear in mind, in Massachusetts the odor of alcohol alone is enough to establish reasonable suspicion by the officer to further detain a driver for testing.

Almost every policy I have seen mentions something about the safety of the public being one of its purposes, and deterrence of drunk driving as being another.  I can tell you from experience that sobriety checkpoints do not deter drunk driving.  I have personally stopped numerous vehicles at sobriety checkpoints with drivers who knew they were driving into a checkpoint, and have blown well over the legal limit.  One individual, in fact, after being arrested once by me during a checkpoint, and after being bailed, was picked up by her friend, borrowed the keys to her friend’s car, and drove right back through the checkpoint because she “had to go to the store.”  Hmmm…I wonder what she was looking to buy?

Sobriety checkpoints are a useful tool for the police to help us be safe on the roads this holiday season.  As always, I would suggest that you monitor the amount of alcoholic beverages you are drinking, and never risk driving under the influence of alcohol.  However, if you come across a sobriety checkpoint, and you are subsequently arrested for DUI/OUI, be sure to discuss all of your options with your attorney.  There may be possible defenses available if the officer deviated from the written policy of the department.

Domestic Assault and Battery

While working the Friday and Saturday midnight shifts as a police officer, the first thing I always did after signing on with dispatch was to go to the Mobil on the Run across the street from the police station to find out how the beer sales were that evening.  It never failed…if the beer sales were up, it was going to be a busy night.  If they were down, it was going to be a slow night.  Those busy nights would have me running from one house to another for domestic related arguments and assaults.

Domestic violence calls are some of the most volatile calls a police officer will respond to.  This is because tempers are already flaring when he gets in, and because a victim can turn into an aggressor at any time (or vice versa).  If, given the situation, the officers determine that a battery took place, the law says that they shall make an arrest.  Shall, in the law, means must.

Every state is different when it comes to defining assault and battery.  For example, in Massachusetts an assault is the act of placing another person in reasonable apprehension of the imminent use of force against him/her.  A battery, on the other hand, is reckless or intentional touching of another person, without that person’s consent, which causes physical harm.  Every battery, by its definition, also contains an assault, but they are two distinct charges.  In New Hampshire, however, an assault is a battery and vice versa.  To fully know your rights, you should ask your attorney what the law is in your own particular state.

A domestic related assault and battery occurs between two people who have, or had, either an intimate relationship or a familial relationship.  This list includes parents, siblings, boy/girlfriends, spouses, and even former boy/girlfriends.  If a battery takes place in any of these relationships, the law demands the police make an arrest.  In most states, the police do not need a warrant to make an arrest if the arrest happens within 12 hours of the battery.  This “12 hour” rule has been passed by the various legislatures to provide immediate protection to victims of domestic assault and battery.

As with most laws, the nuances can vary between different states.  As a defense attorney, I do my best to make sure that my clients completely understand the law as it applies to them.  It’s best to consult an attorney in order to fully understand the laws in your own state.

Criminal Standards of Proof

While speaking with an OUI client this week, I found myself again explaining to him the different standards of proof.  This is a conversation that I generally have with clients in an initial consultation, but the nuances between the different standards can be confusing to some people.  Most clients come into the office and tell me that the police officer didn’t have “probable cause” to pull him over.  This may be true.  But an officer doesn’t need probable cause to pull you over.  He only needs “articulable suspicion.”

When it comes to criminal law, there are generally three standards of proof that you are dealing with.  The first is articulable suspicion.  To put it as simply as possible, what this means is that the officer must be able to articulate that he believed a crime (or motor vehicle violation) occurred, or was in the process of occurring, and why.  This is an extremely low standard.  I mentioned in a previous blog that, while working as a police officer in my former life, I used to read the motor vehicle code on the midnight shift to give myself something to do.  The average driver has no idea of all the different reasons that could get him/her pulled over by the police.  Your fuzzy dice, CDs, and graduation tassels hanging from your rear view mirror can get you pulled over.  If you cut through a parking lot to avoid getting stuck at a traffic light, you can get pulled over.  If you are weaving in the lane, even if you haven’t crossed over either the yellow or white line, but you have been weaving for a considerable distance, a trained police officer can articulate that he believed there was something wrong and he needed to pull your car over to check on you.  So the long story short of it is that articulable suspicion is a very low standard.  It allows the police to investigate the situation.

The second standard of proof is “probable cause.”  Probable cause means that more probably than not a crime was committed, and you probably committed that crime.  With search warrants, it’s more probable than not that a crime was committed and the thing (the item, person, etc) the police are looking for is probably in the place to be searched at the time the police are searching.  This is a little higher standard than articulable suspicion, and the police are required to meet this standard before making an arrest or even asking a judge for a search warrant (keep in mind there are many exceptions that allow the police to search without a warrant, but that’s an explanation for another day).

The last standard of proof to deal with in criminal matters is “beyond a reasonable doubt.”  This is the standard for conviction of a crime.  A jury (or a judge as the case may be) must find a defendant guilty beyond a reasonable doubt.  This does not mean that they must find you innocent beyond ALL doubt.  There are no absolutes in life, and anyone can stretch an explanation to such an improbable degree that doubt can be found.  Rather they must find you guilty beyond a reasonable doubt.  This is an extremely high standard.

The standards of proof can be difficult to grasp at first.  At our office, we believe the only person who has rights is the person who knows what their legal rights are.  If you are under investigation by the police, have been arrested for a crime, or you are currently waiting trial, make sure your attorney explains to you the different standards of proof until you completely understand them.

Eye-Witness Identification

Even in my former life as a police officer, I rarely trusted eye-witness identifications.  I don’t have anything against the process per se, but I have found that in a stressful situation, the average person’s mind freezes and misses about 90% of what is going on, and then fills in the gaps for him/her later.  Those gaps are filled in by anything or anyone.  I can’t tell you how many times I found myself looking for a short and tall male, with black and blond hair, wearing a black/green hoody/t-shirt and shorts/long jeans, last seen heading south/north.  As police officers, we were trained to immediately separate witnesses.  This is mainly because they like to talk to each other about what happened.  When 1 person misses something that happened, the blanks are filled in by what everyone else is saying.  Also, witnesses who talk can change each other’s minds about what actually happened.  Long story short, eye-witness identification can be very unreliable.

The courts have also put a lot of restrictions on eye-witness identification.  They say that the police officers cannot be overly suggestive.  When there is a witness that identified my client, the first question I always ask is, “Does that person know you outside of this event?”  One reason for this is that, if the witness does not know my client, there is a stronger argument for attacking the identification because much of it, statistically, is going to be inaccurate.  Did the police officer separate the witnesses as soon as he got to the scene?  Did the police officer suggest an answer to a witness who couldn’t remember what the alleged suspect was wearing?  Did the police officer, when showing a photograph to the witness, only provide one photograph and ask the witness if that was the person who committed the alleged crime?  Did the police officer show multiple photographs, but my client’s photo was different than all the others or the officer held his finger next to my client’s photo while the witness was looking at the photo array?  If I can show the identification was tainted, any successive identification, unless it can be shown that it came from an independent source, is also suppressed.

As a police officer, I never relied completely on what a witness said.  If it couldn’t be corroborated by any other form of evidence, then it didn’t happen.  To the other police officers out there, I recommend the same thing.  To the defense attorneys who come across a case that rests solely on eye-witness identification, I say attack that identification.  Statistics are in your favor.  Make the police do their jobs properly.

A Basic Review of Miranda

In my former career as a Police Officer, and in my current career as an Attorney, I have had several people tell me that they were not read their Miranda rights, so any statement they made to the police is inadmissible in court.  This notion is not entirely accurate.  Forced, and many times coerced, confessions brought the United States Supreme Court to decide in Miranda v. Arizona that before any custodial interrogation can begin by the police, an arrestee must be read a set of rights.  Those rights have been dubbed the “Miranda Rights.”  The key to triggering those rights is custodial interrogation.

Custody is both an objective and a subjective test.  Objectively, would a reasonable person in your situation believe that he/she was in custody at that time?  Subjectively, did YOU believe that you were in custody at that time?  Generally speaking, a reasonable person, sitting in the back of a police car, handcuffed, and told by the police that he/she is under arrest is both objectively and subjectively in custody.  Now think about the person who is sitting in his/her home, three police officers standing in front of him/her, asking questions about a possible crime.  Is that person in custody?  You have to ask yourself several questions, including:  Is he free to leave?  Is he free to tell the police to leave?  Where are the officers positioned around the person?  Is there a clear path to the door?  Many more questions can be asked, to include event specific questions, but for brevity purposes, I’m sure you get the point.  When you run your test, the answers can be different depending on who you are working with.  Is this someone who doesn’t have much contact with the police?  Or is this someone who has had several run-ins with the law?  The person who deals with the police on a regular basis may not subjectively believe that he is in custody at that moment, even though a reasonable person may objectively believe that he is.

Interrogation is fairly simple.  Did the police ask any questions?  Bear in mind two things with this, though.  First, if the officer makes a statement that is designed to invoke a response from you, then it is the same as if he asked the questions.  Second, routine booking questions are not included in the definition of interrogation, and therefore are not covered by Miranda (height, weight, address, place of employment, etc.).

With all that said, the simple explanation to Miranda is, if you are in custody, then prior to asking any questions the officer must read you your Miranda rights.  However, if you volunteer information, despite having not been read your rights, then any of those statements may still be used against you in court.  So the point is, if you are arrested by the police, do not say anything.  Just because you haven’t been read your rights does not mean that what you say is inadmissible.

The Effect of the Exclusionary Rule on OUI/DWI

As a former police officer, I will admit that on a really slow night, the police are looking for any reason to pull someone over.  I have stopped cars for the license plate light not working, having items hanging from the rear view mirror, cutting through a parking lot to avoid a traffic light, and even having a license plate frame that covers the state name, no matter how slight.  The motor vehicle code is thick; it doesn’t take much to find a reason to stop someone.

Now imagine you get behind the wheel of your car after having consumed 6 beers.  You pull onto the road and, almost immediately, you’re pulled over by the police.  Long story short, the officer smells alcohol on your breath and asks you to perform some field sobriety tests.  You comply, you fail miserably, and he places you under arrest for Operating Under the Influence (OUI/DUI or drunk driving).

When a client comes into my office, I ask a lot of questions about the initial motor vehicle stop.  This is because if I can show that the officer could not have had articulable suspicion to stop the car (no matter what the reason he gives for stopping your car), then the exclusionary rule says that any evidence gathered afterwards is also inadmissible.  Bear in mind that there are several exceptions to the exclusionary rule, and this is by no means the only defense to be looking at, but it is the first that I like to consider.  For example, assume that it can be shown that the purpose behind the stop was based upon racial profiling (it’s easier to explain by going to the extreme).  Selective enforcement is a violation of the equal protection clause of the Massachusetts Declaration of Rights.  So the stop was illegal.  Because the stop was illegal, all other evidence gathered as a result of the stop is “fruit of the poisonous tree.”

There are many defenses available to someone who has been arrested for drunk driving.  The exclusionary rule is only one of those defenses.  It’s not a defense that can be used in many cases, but I like to consider it at the beginning of each case.  You never know when it can work in your favor.

What is a “Public Way?”

I recently had a client in my office, charged with Leaving the Scene of a Motor Vehicle Accident.  Essentially, she was in a parking lot, backed out of her parking space, was not paying attention to the passenger side of her car, swung too short, and…crash!  She finished pulling out of the parking spot, wrote down the license plate number of the other vehicle, and drove away.  She “was in a rush,” and therefore did not wait for the other owner to come out of the store.  As with any other time when you think no one is looking, there was a witness to the entire incident.  This client did not report the accident to anyone until after she received a telephone call from the local police department.  At that time, she told the police EVERYTHING.  She even called her insurance company, spoke on a recorded line, and told the claims adjustor EVERYTHING.  Setting aside for now the issue of “statements used against you in a court of law,” my client was adamant that she had a great case because she wasn’t on the road (not on a “way”) and therefore could not be found guilty of a “hit and run.”

The law uses the term “way” or “public way” in describing where a motor vehicle law can be enforced.  A public way, as most people can guess, includes streets, roads, avenues, and highways.  What most people don’t know, and what my client didn’t understand, is that a parking lot can also be considered a public way.  It is not necessarily private property, just like your own driveway is not necessarily private property.  Parking lots, and your driveway, are generally considered “semi-private” property.  This makes sense when you think about it.  Any customer wanting to enter the parking lot of the grocery store is generally invited there to conduct business.  There really isn’t anything “private” about the parking lot at all.  It is “a place to which the public has a right of access…”  Case law has upheld these issues by going as far as to say the parking lot of a closed shopping mall, where services at the mall (ATM, etc) can be accessed even when the stores are closed, is considered a “public way.”  In a case 3 years ago, the appellate court said that a pier may qualify as a “public way,” even where its entrance is blocked by a closed swinging gate, and signage limits access to authorized vehicles.  My rule of thumb…if you can drive a car or ride a motorcycle on it, some District Attorney can make an argument that it’s a public way.