There are two questions lawyers are asked by family and friends from the moment word gets out that law school has begun: “How could you represent a rapist and still consider yourself to be a good person?” and “What should I do if I’m arrested or have been stopped by the police?”
Today we’ll take a stab at the second question primarily because I’m sick of answering the first question, plus my testy Editor has ordered me to have an answer on his desk by Wednesday. I don’t know what’s going on but he had quite a few diagrams of a local bank spread out across his desk the other day and he was asking all sorts of questions about how to reach me in the middle of the night.
So what should a person do if they’ve been arrested? But first a disclaimer: the police tend to dislike this type of advice (and the people who give it) because they see it as interfering with their primary investigative function. In our adversarial system it is one of the defense attorney’s functions to make sure that people understand their various civil rights. I recognize that this type of advice does interfere with the police function but that that is precisely what I do for a living, so here goes. I figure we’ll start with the technical legal response.
Shut the hell up Francis, the nice police officer is not your friend after she has placed the handcuffs on your wrists or if she is asking you how your car managed to be in the ditch….just shut up!
It is true that the police are awesome and that they come when we need them and I’m not being facetious…the police are your friend in the overwhelming majority of your interactions with them. So please don’t take this to mean that you should not call the police if you see some knucklehead slapping some kid around…or you work at Penn State and the coach is lathering up with a ten year old.
No, my friends today we are dealing only with YOU and what YOU need to do if you’re arrested and want to preserve the ability to have a fair trial. You see, the police are most assuredly not your local “Officer Friendly” once they slap the cuffs on you….they are listening to every word you utter so that they can use your words against you in court. I get it, since you were in third grade you’ve been taught to tell the truth and to cooperate with the police….but when the police officer has made a determination that you have committed a crime and placed you in custody you are not required to cooperate….if you do, do so at your peril.
But I can explain that they have the wrong guy.
Maybe, but it is highly unlikely at the scene and once the arrest determination is made the police are generally reluctant to let people leave. You may feel that you have “nothing to hide” and while you may be completely innocent—you’ll be wasting your breath in most cases trying to convince the police officer. You need to “tell it to the judge” is a common refrain from police officers and they mean it because only a judge (or jury) matters once you’ve been charged. The police gather information and they make arrests if they believe that they have probable cause, or reasonable suspicion, to do so. The officers smiling at you across the table have already decided that YOU are their man…don’t be offended if they have trouble believing you that it’s all a big misunderstanding. They do not prosecute the arrested suspect, they do not decide questions of quilt and they do not impose sentence upon conviction. The fact that the other guy started it or that the country club you were at for the past seven hours has a two drink limit might not be enough for the local chief to start drafting an apology. No sir, you are their guy or gal and they are listening in the hope that you confess, say something inconsistent or that you fill in the blanks on details of the night’s events.
Let’s be very clear about one thing; the vast majority of police officers are decent, hardworking and honest….with one unique qualifying attribute. They have a tendency to be bulldogs when defending their decision to arrest an individual. Police should be as objective as possible when evaluating the facts of a case but I have yet to meet the officer who will readily agree that they arrested the wrong person. It just doesn’t happen. When the police make an arrest they are usually convinced that they made the right decision and they tend to view the facts in a very different light than you or a jury might.
I am always amazed when a prospective client tells me that he was arrested, and refused the breathalyzer test, but then submitted to the field sobriety tests and was just chatting up a storm. You would not believe how many people actually delude themselves into thinking that they managed to convince the police that they were not intoxicated and that they managed to make friends with the arresting officer.
Please do not drink and drive, but if you are stopped and the officer begins to ask questions about whether you’ve been drinking and if you have a right to refuse the breath test and you elect to do so…why would you submit to a handful of field sobriety tests
It may ultimately be in your best interests to speak with the police….just make certain that when you do you have an attorney next to you and that you and your attorney have a signed agreement that what you say cannot be used against you. So if you are arrested and you are overwhelmed with the desire to speak…try this
“I’d like to speak with an attorney right now”!
You’ll know you’ve made the right decision when the officer doesn’t seem quite so friendly anymore.