Wednesday, October 15, 2014

Ithaca Police: Were You Really Arrested and Does it Matter?

I get all kinds of phone calls. This guy called yesterday. He was stopped for a traffic violation, then admitted to drinking, and then was tested at roadside (field sobriety tests). This is where it gets interesting, he said the police told him he was not under arrest

BUT they handcuffed him. They told him he was not under arrest
BUT they placed him in custody. They told him he was not under arrest.
BUT they fingerprinted him. They told him he was not under arrest
AND that this was just PROCEDURE, and then they breath (chemical) tested him at the police station.
AND they gave him DWI tickets (charges) and released him.

Cuffed, Held, and Taken into Custody = ARREST

So First, was he arrested by the police for a DWI?

Based upon the police actions, cuffed, custody, printed, and basically booked, YES.

He was deprived of his liberty, arrest comes from the French word, "arret" to STOP. Does it matter that he said they told him he was not? NO. Should they have informed him of his first charge, DWI common law, yes. BUT that will not negate (dismiss) the charges or the consequences.

Does it matter if you are "officially" arrested?

Generally, the bottom line is police have it in their discretion to fully process you, hold you over night, or to just give you the charges. It is very common in the Finger Lakes area to merely charge a traffic related misdemeanor like AUO (aggravated unlicensed operation), and not go through processing (and arrest). You may have not known your license was suspended for something that happened years prior.

Charging you, and arresting you do not always have to coincide. The charges can be criminal or non-criminal. It is common for people not to be fully processed on the night of their DWI (not to be printed), sometimes they are not functioning or moving very well, so it makes sense to have them return when they are.

If you receive CRIMINAL CHARGES you are alleged to have committed CRIMES.

If you receive CRIMINAL CHARGES you must deal with them.

This man walked away with DWI CHARGES. He is now facing criminal charges. Whether or not the police told him so. Should the police tell you? YES. They are "supposed" to inform you but I guess they could say they were concerned for their safety. OR they could lie, heaven forbid, they never do that. This guy could not wrap his head around what happened. Unfair, yes, Unlawful, maybe, but to be dismissed NO. He thought well just like on TV or in the movies, this is a loophole right? They didn't do their job. Just like the person that states well they said green car and my car is grey, they wrote a Mercedes and my car is a Mercury, shouldn't all this be thrown out? Again my fast answer, NO.

This guy also stated that the police did not Mirandize him. This does not negate the arrest, I think after all he went through it should be called what it was, an ARREST. If they did not give Miranda warnings, that may negate statements he made if he was in custody, and if he was interrogated.

Always remember to consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

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Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers