Monday, July 16, 2012

Ithaca Cortland Lawyer Asks If YOUR Miranda RIGHTS are Dead?

As a DWI defense attorney by far the most common question I am asked is, "if they failed to give me my Miranda Warnings, can my case be dismissed? Can we just get them (the prosecution) to toss everything, ie. the stop of the car, the arrest, and the breath test?

Fast answer , NO!

First, What is/are the Miranda Warnings?

Almost everyone knows them from TV and movies:

1. You have a right to remain silent
2. Anything you say can and will be used against you in a Court of law
3. You have a right to have an attorney present both before and during questioning
4. If you cannot afford to hire an attorney one will be provided to you

Second, What if the police fail to tell them to you?

Then "maybe" some of your statements to the police cannot be used against you. Miranda only relates to YOUR RIGHT TO REMAIN SILENT. It relates to what you say to law enforcement. As a collateral issue you have a right to an attorney as it relates to questioning (interrogation). I have said this before, the police do not have to be honest with you when conducting their investigation. They can lie, make up stories, and deceive in the interests of justice.

Lastly, Are Your Statements to the police really protected under Miranda?

A recent (2010) SCOTUS (the Supreme Court of the United States) decision, Berghuis v. Thompkins (docket 08-1470), basically says Miranda is Dead. You have to state your rights to the police to have any. You have to say "I want a lawyer" or ""I have a right to remain silent." This case stands for the proposition that anything you say is "voluntary" UNLESS and UNTIL you state otherwise.

Like most things these days, your inaction in invoking your rights, of demanding what is truly yours, will in the end hurt you. Or in the words of a famous philosopher, "if you snooze you lose."

Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic
Attorney and Counselor at Law
504 North Aurora Street
Ithaca, NY 14850

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