You Have The Right To Remain Silent, But First, Speak Up!
This summer (June) the United States Supreme Court (USSC) issued a ruling contrary to the longstanding belief that, silence by an accused who informed and warned of the right to remain silent was an obvious invocation of the right. The case is BERGHUIS v. THOMPKINS. Traditionally, a person’s silence after being informed of their rights, specifically the right to remain silent made it very obvious that they were exercising that right. The new ruling by the USSC has changed that and a person must now speak up to actually invoke the right.
The facts of the case were that the defendant was being interrogated by police for over 3 hours and during the interrogation he remained silent until near the end of the ordeal when he was asked if he prayed to God to forgive him for the shooting that he was being interrogated about. He provided the single word answer of “yes.” This answer is classic example of using the person’s words against them and why defense attorneys always advise to actually use the right.
The rule on the right to remain silent comes from the landmark case of Miranda v. Arizona. In that 1966 case the USSC fashioned a rule requiring a person who was in custody to be warned in the following manner:
You have the right to remain silent; Anything you say can and will be used against you in a court of law; You have a right to talk to a lawyer before answering any questions and you have the right to have a lawyer present with you while you are answering any questions; If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one; You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.
The warnings are very clear and it has always been the case that a person’s silence in the face of interrogation indicated they did not want to answer any questions. In Thomkins case, Officers began an interrogation after the warnings were given. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Traditionally, when the right was invoked the police were required to end the interrogation, but according to the Supreme Court the failure to actually speak up and say that the right to silence was being invoked, the interview did not have to end. Having found no invocation, the court did not need to analyze whether there was a waiver of the previously non-invoked right, but since the two issues are tied the high court decided to take the opportunity to address the issue and highlighted the rule that that states that:
As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. . . . Thompkins waived his right to remain silent. There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke.
Therefore by virtue of these facts and the single word answer given nearly 3 hours into an custodial police interview the answer given by Thomkins was admissible in a trial. In fact, the Court specifically wrote: “The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time.” Consequently, this case serves as an example of why the right to silence is so very important as well as a case that appears to erode a longstanding common sense approach to this issue.
Fortunately, this is a case that may not affect the citizens of Washington State, because this is a Federal Constitutional right and the State Constitution of Washington provides a greater level of protection to citizens enduring a custodial interrogation. Washington case law is full of this exact situation and the State Supreme Court has consistently found that silence in the face of interrogation is indeed, an invocation of the right and questioning must cease and if is does not, any answer is not admissible UNLESS the officer clarifies the fact that that the person wishes to waive that right. Despite this greater protection the safest course of action is to invoke the right or invoke the right by invoking another important right that automatically invokes the right to silence: The right to a lawyer. The only right a person needs to remember is the right to a lawyer because once that is done the police MUST provide access to a lawyer and CANNOT ask any questions. The Miranda warnings have been altered a little bit since the 1966 decision and also inform a person that anything they say can and WILL be used against them. It never ceases to amaze me the types of things that the government attorneys (prosecutors) seek to use pursuant to a waiver of the right under that warning.
In a DUI prosecution and trial the government attorneys will try and admit the custodial interview done on those arrested who do not invoke their right to silence or an attorney. In a DUI case the answers to the questions may not appear incriminating, and some are not, but what they do eliminate possible defenses regardless of how innocent the questions appear. If you disagree, have a look at the form and ask yourself, why would the WSP create a form with these specific questions? Because “ANYTHING” you say CAN and WILL be used against you.
DUI is not a crime where a person is going to endure hours of interrogation by police as Mr. Thomskins did, but there is in fact a interrogation that they soften by calling it “Interview” but there is no hiding the fact that it takes place in a controlled environment where the person is NOT free to leave, and cannot leave until the officer says so. As a result, this ruling from the USSC on this issue of silence is one that is important and signals perhaps the pendulum insofar as an accused person’s rights swinging out of their favor.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to remain silent is an important right that effects each and every DUI case, and a right that exists from the moment a driver is stopped, or seized by law enforcement. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
Island County Judge Requires Prosecution To Disclose DUI Breath Test “Bias & Uncertianty” Disclosed To Jury.
Recently, Island County Judge, P. Strow found in favor of all DUI defendant’s when he ordered the production of breath testing bias. The order for production came in lieu of a order to suppress the tests which is what the defense originally requested when the prosecution had not provided information and calculations regarding the limitations of breath testing. Furthermore, it was ordered that such information be disclosed also to the jury during a DUI breath test trial. The ruling came in the case State v. Arnold and while it is a very straight forward concept, it is information that the State Toxicology Lab has been willing to do in only cases where the breath test was within a certain range. The information sought by the defense was, and is not, a technicality but rather a very real calculation regardless of what the breath test reading is.
In this state, the legal limit is .08, and there is an enhancement for punishment purposes when a driver provides a test at or above a .15. The concept of uncertainty and the ruling from the court will require a jury to hear that a driver’s breath test may in fact be under a .08 or under a .15 when the test is close to those numbers. Since the difference between .08 and .07 is the difference between a criminal conviction and a finding of Not Guilty. Likewise, the difference between a .14 and .15 is equally important because a first offense DUI conviction with a breath test of .14 requires a person to spend 1 day in jail and suffer a 90 day license suspension, while a conviction for a .15 breath sample is 2 days of jail and a 1 year license revocation. In the case of a driver who has a prior DUI conviction, the difference in mandatory sentencing is 15 days of jail, 30 days of Electronic Home Monitoring and a 2 years driver’s license revocation. Whenever there is a test that is close to these legal limits and sentencing enhancements, the accuracy of the test and the testing instrument and program should be of paramount concern.
Currently, the Washington breath testing program lags behind most states in the nation with its technology and uses one of the oldest and most obsolete machine to determine a driver’s guilt or innocence and likewise before a case ever sees a jury trial, that same obsolete and problematic machine is used by the Department Of Licensing to suspend a persons driving privilege for at least 90 days.
As I have mentioned numerous times few if any people (including DUI lawyers) believe that DUI is a good thing, rather, what I advocate for is good proof, the highest standards in place for analyzing breath, and only the most current and reliable methods of the breath testing program to be in place. There are such standards in place for DNA testing to solve the most reprehensible of crimes so why is DUI any different? It should not be “easier” to convict a person of DUI simply because it is considered a lesser crime. In fact, i think the opposite is true as evidenced by the outcry of citizens upset with the issue of DUI in this state and Country. In fact many citizens are seeking harsher penalties and it is because of this likelihood that the evidence used to convict a person MUST scientifically reliable above reproach. It is only then that we can be satisfied that the person was in fact guilty of the crime charged.
Law is no different than the rest of the world and as we gain a more reliable method, techniques, and technology to accurately determine a breath or blood sample we must embrace it. Currently, the State Patrol has new cutting edge breath testing machines in storage, but has not yet implemented them for budgetary reasons. As a result, Constitutional right to a fair trial, proof beyond a reasonable doubt, and ultimately the guilt or innocence of some driver’s close to the limit, or close to a sentence enhancement falls prey to a budget rather than the best possible evidence.
Since there is a an ability to use and implement new methods and technology of breath testing to be certain beyond a reasonable doubt, there is also an increase in excluding those that are innocent of the crime. Currently, if a person provides a breath sample of .081 on any given breath test machine in this state, it is more likely that they are under the legal limit. However, if a jury is not told this, if the bias and the “uncertainty” of the breath sample and procedure behind the test is not disclosed a jury will likely make a wrong decision as a result of being uninformed, and a conviction that cannot be undone by later more advanced testing cannot fix the problem. It is only through intellectually honest rulings such as this one, where the legal system progress and advance to more reliable and accurate testing measures. Currently King County awaits a ruling on this issue as does Whatcom County where Judges have heard the motion and testimony and are writing their rulings, while in Island and Skagit this issue is resolved. These ruling come on the heels of poor science and testing procedures exposed 2 years ago while the State Toxicology Lab struggles to recover from a scathing ruling that suppressed breath tests in King County. This ruling remains intact as of today’s date.
In the end what is sought is only the use of the best science be used to ensure what our state and federal constitutions demand: Proof Beyond A Reasonable Doubt. This cannot be achieved unless its counter part is enforced: It is better to allow 9 guilty persons go free than to wrongfully convict 1. This is what the law is build upon. This is what unpopular crimes like DUI require despite emotionally driven rational and rhetoric.
DUI is not a simple charge. Defense of the charge is not to be taken lightly nor is it for the inexperienced, or even an average lawyer. Rather is requires a highly specialized level of understanding, skill, passion, and compassion. Jonathan Rands is experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands at http://www.jrandslaw.com| Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
Are DUI Breath Tests Solid Science, Or Just “Good Enough For Government Work?”
Last Friday the Bellingham Herald ran the following headline and story: Calibration error puts DUI tests across Alaska in doubt. The article written by James Halpin originated from the Anchorage Daily News and states that “Nearly 2,500 breath-alcohol tests conducted in drunken-driving cases across the state over a period of nearly four years used equipment with flawed quality control standards. As a result defense attorneys say the flawed practice calls into question the accuracy of the test. State officials acknowledge the error but say it did not affect the breath-alcohol level DUI suspects blew, only the quality-control checks that accompany every test.
Alaska State crime lab is not alone in this all too common habit of having a flawed quality control system, as they are the most recent state to have their flawed processes exposed. In June 2010, in Washington DC there were at least 400 DUI convictions that were based upon the machines being improperly adjusted by city police. According to the D.C. Attorney General, the District’s badly calibrated equipment would show a driver’s blood-alcohol content to be about 20 percent higher than it actually was. To put this in perspective that means a breath test of .07 is reported as a .084, thereby transforming legal behavior into illegal behavior. Or moving the result over the .15 limit where enhanced DUI penalty and punishment occurs. In July 2010 another lab was exposed in NC Crime Lab Buried Blood Evidence Memo.
In defense of their substandard work, lab technicians, employees, and managers, all have defended their work product by saying the same thing “it does not affect the results,” or it “does not affect the results enough to worry about.” However in Washington State in 2008, when these types of problems were initially identified, they were also said to be “minor and insignificant,” but the Court found otherwise and ordered all tests suppressed- an extraordinary remedy.
Throughout the 2008 hearings this claim of insignificance was not only the first explanation offered but amid mounting evidence to the contrary it became the lab mantra. After several days of testimony from lab personnel, WSP Breath test consultants, and Scientist from the UW, it was clear that problems were far from minor: improperly mixed solutions, flawed software issues, and employees vouching for the work of others with no such knowledge of the work or the quality, causing breathalyzers to function incorrectly and give false BAC readings.
Fortunately of for those accused of DUI based upon breath test evidence that was flawed, in this manner the Court was neither fooled by the mantra, nor forgiving. The 3 judges presiding unanimously slammed the lab’s performance in a 29-page report and said that judges or juries could not rely on the accuracy of breath test evidence found that the work product was not defensible due to a “culture of compromise” and a “multiplicity of errors” at the lab. In the courts final few pages of the lengthy ruling it was held that the lab was found to demonstrate “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in processing of solutions used to calibrate breath-testing equipment. Consequently, the court suppressed more than 18,000 breath tests at that time and the suppression order is ongoing until fixed.
The ruling required the Lab to remedy these deficiencies and when they had done so, the court will reconvene and address the breath test admissibility once again. Apparently the significance of this WSP Tox Lab fiasco was not noticed by other crime labs as evidenced by the recent “minor” problems in Alaska and DC.
This first week of August the three Judge panel will sit once again in judgment of the work product of the Lab. It is reported by the lab and prosecutors alike that the multitude of problems that were exposed more than 2 years ago have been fixed. It is now up to the judicial panel to decide if the problems truly have been fixed. However, with only such a short time having passed, it is hard to imagine that such severe problems identified have been fixed. Consider the fact that; “ethical lapses,” and violations of scientific standards and lab standard operating procedures, all of which led to “The” State Toxicologist who was in charge of the breath testing program, to promptly resign, followed by the Lab’s manager, after she was discovered to have had others do her work for her, yet she signed off as though she completed the work herself, as well as, the toxicologist who most often did her work also resigned rather quickly after the 2008 hearing. While these are the most prominent actors there was an exodus of other employees.
While the 2008 hearing sparked a large turnover in the lab as well as a public commitment to “do better,” the various improvements in the lab made to date, are still far from forensically sound. Around Washington there have been hearings on this issue, with mixed results, but most recently, Skagit County did not suppress evidence but forced the state to provide information that was not previously ever presented to juries in DUI trials. Currently Whatcom County DUI cases await a ruling on this very same issue after 3 days of testimony.
It may be tempting to blame DUI lawyers and attorneys alike for the states breath testing problems, such blame is misplaced. The state and its actors have an obligation to put forward the best evidence possible in a trial. They have an obligation to adhere, not only to their own standards, but more importantly, adhere to the generally accepted scientific standards of breath testing. To do otherwise is a violation of rules but also a miscarriage of justice since innocent people may go to jail due to unsound evidence.
DUI is not a crime that engenders a sympathetic ear but neither is rape, nor murder and as we have seen far too many people have lost years of their lives due to a lack of adherence to science as evidenced by re-testing of evidence. The defense bar stands as the last line of defense to guard against taking liberty without the best possible evidence. All we ask is that evidence, in this case, breath testing evidence, be obtained in a reliable and scientific manner as the procedures, protocol, and science requires. There is no hidden agenda. Prove guilt beyond a reasonable doubt. Nothing more, nothing less.
As evidenced by the complex science associated with DUI breath testing, DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
