The right to remain silent, which is in the Fifth Amendment, is one of the most important individual rights in the Bill of Rights. If you are arrested, the more you say, the more evidence the state has against you. It really is that simple. Frequently, officers try to bully defendants in these cases. They say things like, “If you don’t talk to us, we’ll charge you with this crime.” But that’s probably going to happen whether you talk or not.
The right to remain silent also includes the right to refuse cooperation, at least to some extent. For example, drivers need not roll down their windows at DUI checkpoints. They must only comply with basic commands, like presenting documents for inspection.
The Fifth Amendment is so important because a criminal attorney Rochester, NY, routinely argues that there is a lack of evidence. The state must prove guilt beyond a reasonable doubt. The less evidence prosecutors have, the easier it is to successfully resolve a criminal case.
Origins of the Right to Remain Silent
Widespread use of ex officio mero oaths prompted many English dissidents, especially religious dissidents, to flee England and come to America. EOM oaths were basically confessions of guilt. Usually, criminal suspects were forced to swear these oaths before they knew what charges they were facing. Suspects who did not swear EOM oaths were presumed guilty.
In America, the Puritans were the first group to guarantee the right to remain silent. Founding Father James Madison picked up on this idea. He included it in what later became the Fifth Amendment to the Constitution.
Custodial Interrogation and Criminal Attorney Rochester, NY
As soon as custodial interrogation begins, suspects have the right to remain silent. Many people believe that “custodial interrogation” means they are handcuffed in police interview rooms. After all, that’s the way it looks on TV. But to a criminal attorney Rochester, NY, this phrase is much broader. As a result, suspects can invoke their right to remain silent much sooner.
In general, people are in custody when they do not feel free to leave. In a typical traffic stop, most people do not feel free to leave as soon as they see flashing squad car lights in their rearview mirrors. Sometimes, they may feel confined even earlier. For example, when officers suddenly change directions and follow suspects closely, most people do not feel like they can leave of their own free will.
Likewise, interrogation does not mean asking questions about alleged criminal activity. Police officers know how to subtly extract information with seemingly innocuous questions, like “where are you coming from?” So, as a general rule, as soon as police officers open their mouths, you should probably close yours.
How Do I Invoke My Right to Remain Silent?
For many years, people invoked their right to remain silent simply by remaining silent. Then, in 2010, a sharply-divided Supreme Court handed down a decision in Berghuis v. Thompkins. The Justices ruled that suspects must affirmatively invoke their right to remain silent. Otherwise, they waive it. Some examples of an affirmative waiver include:
I am exercising my right to remain silent,
I want to talk to a lawyer,
I’m exercising my Miranda/Constitutional rights.
Some variation is acceptable, but the waiver must clearly indicate that the suspect is exercising Constitutional rights. Otherwise, police officers may later claim they did not know that’s what the defendant was doing, and a Monroe County judge might accept that argument.
On a related note, police officers often take turns interrogating suspects. This approach is sometimes known as the good cop, bad cop. It’s important to assert your Fifth Amendment privileges when a new interrogator appears. Don’t assume the officer knows about a previous assertion.
Contact a Dedicated Lawyer
Defendants must confidently assert their right to remain silent, and a lawyer must protect this sacred right. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
Every POM (Possession of Marijuana) case is different. But most of them start the same way. This similarity helps a drug charges Rochester, NY lawyer prepare effective defenses to POM cases.
Assume Mike is at a house party. Two people get in a fight, and officers respond to a disturbance call. While there, they conduct a safety sweep of the apartment. During this sweep, they discover a stash of weed in the living room. They arrest everyone in the living room, including Mike, for possession of marijuana.
That’s one scenario. To examine the second common scenario, assume that Mike leaves the party with friends. He is in the back seat. Officers pull over the vehicle during the ride for an unrelated traffic violation. The vehicle owner, who is not Mike, gives officers permission to search the car. After finding marijuana in the glove box, they arrest everyone in the car, including Mike, for possession.
The stakes are rather high. Possession of more than two grams of marijuana (about four tablespoons) is a misdemeanor in New York. Lawmakers recently approved some partial decriminalization and expungement measures, but they only apply to lower levels of possession, in most cases.
Physical Evidence
In drug, pornography, weapon, and other contraband possession cases, the state must produce the item in court. This requirement is not easy for the state to meet, in many cases. For example, chain of custody issues sometimes taints the evidence. If prosecutors cannot account for every link in the chain of custody, such as transfers from the field to the police evidence locker, there might be a reasonable doubt as to authenticity.
Illegal searches are even more common. Police rarely have search warrants in drug possession cases. So, prosecutors must rely on a narrow search warrant exception, such as:
Exigent Circumstances
This exception gives officers the right to search dwellings if they believe someone might be in trouble. During these sweeps, they may seize any contraband they see in plain view. More on that below. These security sweeps are just that. They are brief walk-throughs. Officers cannot poke into every nook and cranny.
Voluntary Permission
Owners or apparent owners, like a driver who does not own the car, can give consent to a vehicle, dwelling, backpack, or other property searches. Consent is a voluntary, affirmative act. There’s a difference between active consent and “that’s fine, officer”. Additionally, owners can revoke consent after they give it.
Plain View
As the name implies, an item is in plain view if it is visible to the naked eye. These seizures are admissible if officers were legally in that place then. So, if a drug charges Rochester, NY lawyer casts doubt on the reason for the law enforcement contact, a subsequent plain view seizure might be illegal.
Special rules might apply if the defendant was on parole or probation. As a condition for supervised release, defendants frequently give blanket authorizations allowing peace officers to conduct random searches.
Drug Charges Rochester, NY and the Nature of the Substance
Before lawmakers legalized industrial hemp, this element of a POM case was a mere formality. Today, it could mean the difference between a successful resolution and extended jail time or court supervision.
Physically, hemp and marijuana are indistinguishable. They look alike, feel alike, and smell alike. A THC content test is the only way to tell the difference, at least beyond a reasonable doubt. If the Tetrahydrocannabinol level is less than .3 percent, the substance is hemp, not marijuana. End of story. Circumstantial evidence, such as the way the defendant used the substance, is usually not enough to establish the nature of the substance beyond a reasonable doubt.
Lately, a drug charges Rochester, NY lawyer may have dealt with this issue regarding marijuana edibles. People often buy brownies and other edibles in Massachusetts, where they are legal, and bring them to New York, where they are illegal. Once again, a THC content test is the only way to tell the difference. Claims about marijuana content percentages on product labels are usually insufficient.
Count on a Tough Drug Charge Defense Attorney
Possession of marijuana charges do not always hold up in court. For a free consultation with an experienced drug charges Rochester, NY lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
In most years, drug overdoses are the leading cause of injury-related death in the United States. Thankfully, drug defense attorney Rochester, NY are working to find ways to resolve the charges that come along with distribution and trafficking and focus more on the safety and health issues of drug addiction.
Many of these victims obtain illegal drugs from criminal gangs or Mexican cartels. That’s usually the case for street drugs, such as heroin and methamphetamines. In other situations, the drugs may come from friends, neighbors, or coworkers. Fentanyl, Oxycontin, and other prescription painkillers are often more powerful than many street drugs.
The bad news is that New York’s trafficking and distribution penalties are usually not related to the gross amount or specific type of drug. Typically, these actions are always felonies. It does not matter if the defendant only transferred one or two pills. It also does not matter if the defendant didn’t receive money.
The good news is that many Monroe County jurors now see drug addiction as a health and safety issue, as opposed to a criminal law issue. That’s especially true with regard to prescription drug trafficking and distribution. So, in many cases, a drug defense attorney Rochester, NY can successfully resolve these matters, especially if there is a credible defense.
Procedural Defect
Many large-scale drug trafficking prosecutions involve lengthy investigations which culminate with search warrants. Frequently, to obtain the necessary warrant, investigators rely on information provided by a paid informant. Since many people will say almost anything for money, such reliance is only permissible in certain situations. Most Monroe County judges will invalidate informant search warrants unless the information meets a strict evidentiary standard. Some factors to consider include:
The specificity of the information provided,
Informant’s track record,
Amount of compensation the informant received,
Informer’s relationship with law enforcement, and
Any facts which corroborated the information provided.
When it comes to search warrant validity, Monroe County prosecutors cannot work backward. They cannot argue that since officers found drugs, the information must have been reliable. The probable cause affidavit stands or falls on its own.
In smaller drug trafficking cases that involve a couple of Fentanyl patches or a small amount of other narcotics, officers rarely bother with search warrants. Therefore, the seized physical evidence is only admissible if a narrow search warrant exception applies. Consent is perhaps the most common search warrant exception. Owners or apparent owners may give consent to search dwellings, vehicles, or containers, like purses. An apparent owner is someone like a driver who does not legally own the car.
Drug Defense Attorney Rochester, NY and Lack of Supporting Evidence
Seized drugs only establish possession. To establish more serious trafficking and distribution cases, especially in marijuana and other street drug cases, prosecutors often rely on additional circumstantial evidence, such as:
Amount of drugs,
Baggies,
Scales,
Cash, and
Weapons.
Circumstantial evidence is subject to interpretation. Granted, if officers find a trunkload of marijuana, even the best drug defense attorney Rochester, NY would be hard-pressed to successfully argue that all those drugs were for personal use. But aside from such extreme circumstances, such arguments are usually plausible.
Additionally, in staged press conferences, police officers usually lay out the seized drugs next to cash, weapons, and any other circumstantial evidence they found. But in reality, cash or baggies in the kitchen might have little to do with drugs in the garage.
Roughly these same principles apply in prescription drug trafficking prosecutions. Frequently, when police officers arrest people for drug possession, they ask “Where did these drugs come from?” Unless the suspect has been properly Mirandized, the answer given might be illegally obtained. As such, any subsequent drug distribution arrest is also illegal, under the fruit of the poisonous tree doctrine.
Even if none of these defenses apply, because of the aforementioned environment, a drug defense attorney Rochester, NY can often secure pretrial diversion, deferred disposition, or another outcome that does not result in a permanent criminal record. That’s especially true if the defendant is a first-time offender.
Contact an Experienced Lawyer
Drug distribution and trafficking charges do not always hold up in court. For a free consultation with an experienced drug defense attorney Rochester, NY, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
New York has some of the harshest DWI laws in the country. Even for first-time offenders, the direct consequences include lengthy court supervision, high fines, possible jail time, and drivers’ license suspension. The indirect consequences, such as sky-high auto insurance rates, might be even worse. Fortunately, a Rochester DWI attorney can leverage one of several available defenses and successfully resolve these criminal charges. Frequently, an attorney obtains a favorable out-of-court settlement. In many cases, if the defense is strong enough, a Rochester DWI attorney might get the charges dismissed altogether.
Procedural mistakes are quite common if the arrest occurred at a DWI checkpoint or during a heightened enforcement sweep. Officers are under even more pressure than normal to make arrests in these situations. As a result, they often take illegal shortcuts.
Officers must have reasonable suspicion to detain motorists. Typically, that reasonable suspicion has nothing to do with DWI. Instead, an officer sees a motorist commit a traffic violation, like speeding. During a subsequent investigation, the officer notices some physical symptoms, such as bloodshot eyes or an odor of alcohol. Additionally, many suspects do not assert their right to remain silent when questioned. Instead, they admit they have had a few beers or they just came from a bar.
Roadside checkpoints are an exception to the reasonable suspicion rule. However, officers cannot pull over vehicles at random at a roadblock. The detentions must follow very specific guidelines. The slightest violation could invalidate the stop and therefore the arrest.
Speaking of DWI arrests, officers must have probable cause to arrest suspects. This evidentiary standard is not much higher than reasonable suspicion. Generally, if a defendant does poorly on one or more field sobriety tests (FST), that’s sufficient for probable cause.
However, in their rush to make arrests, some officers skip the FSTs. Other times, defendants assert their Constitutional rights and refuse to perform these tests. In these situations, the lack of probable cause might be an issue.
2. Not Intoxicated
Frequently, intoxication, or lack thereof, is the central issue in a DWI case. The state can prove intoxication through a chemical test, which is almost always a breath sample, or with the aforementioned FST.
The Breathalyzer is far from a perfect device. In fact, aside from the number of bells and whistles, it is not much different from the Drunk-O-Meter, a device that appeared in the 1940s.
Aside from its mid-20th century technological base, the Breathalyzer has several technical flaws. For example, if the defendant belched or vomited in the fifteen minutes before the test, unabsorbed alcohol particles from the stomach flood the mouth. These additional particles artificially raise the BAC level. Officers are supposed to monitor defendants to ensure test accuracy, but they usually do not do so.
The FSTs, such as walking a straight line, are very difficult to perform, whether the subject is drunk or sober. Additionally, the results are very subjective. Officers always testify that the defendant “failed” the test, even if the defendant scored a 90 percent. Most Monroe County jurors do not consider that mark to be a failing grade, and the jury’s opinion is the only one that counts.
3. Not Driving the Vehicle
The “driving” element of a “driving while intoxicated claim” is an often-overlooked defense. If a Rochester DWI attorney can create reasonable doubt on this point, or on any other element, the defendant is not guilty as a matter of law.
This element is often an issue in DWI collision cases. Typically, the defendant exits the vehicle when emergency responders arrive. Unless the state produces a witness who saw the defendant driving the vehicle, there is usually no evidence on this point. Prosecutors usually call this issue “wheeling” the defendant.
On a similar note, a person is not “driving” a car just because s/he is behind the wheel. New York law is very broad on this point. Nevertheless, if the defendant was asleep or unconscious, did not have the keys, and/or the car was not drivable (e.g. out of gas), DWI charges might not hold up in court.
Rely on an Experienced Rochester DWI Attorney
One or more of these defenses usually apply in a DWI prosecution. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester DWI attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
Most criminal penalties serve two basic functions. At least theoretically, they should punish offenders and deter others from doing likewise. So, first-time DWI consequences are harsh, and second time DWI consequences are even harsher. In the Empire State, unlike most other jurisdictions, a second DWI is normally a felony.
In most cases, New York has a ten-year lookback period. So, if Debbie got a DWI in 2010 and is charged with DWI again in 2020, she’ll need a DWI lawyer Rochester to help reduce the punishment for second-time offenders. Note that the lookback period runs from previous conviction to current arrest. Also, the lookback period is different in some cases.
Second-Time DWI Consequences: A Closer Look
The direct consequences of a second DWI vary according to the facts, mostly the defendant’s BAC level. Generally, the maximum punishments are as follows:
Four years in prison,
$1,000 fine, and
One year drivers’ license revocation.
That prison sentence usually includes a mandatory five days in jail. A limited drivers’ license might be available for at least part of the revocation period. Other possible direct consequences include an alcohol evaluation and completion of any required treatment.
A good DWI lawyer Rochester will also carefully advise their clients about the possible indirect consequences. For example, auto insurance rates could double or even triple following a second DWI conviction. Many alcohol-related offenses also have employment, immigration, and family law consequences.
Intoxication Defenses and DWI Lawyer Rochester
Most DWI defendants provide chemical samples. If that sample shows a BAC level above the legal limit, the defendant could be guilty as a matter of law. That’s assuming the test results are 100 percent accurate, and no device has that good of a track record. In fact, Breathalyzers are quite similar to the 1940s Drunk-o-Meters. Some specific issues include:
Ketone Levels: Many individuals, mostly smokers, and diabetics, have high ketone levels in their bodies. Breathalyzers register this substance as ethanol. As a result, in many cases, the Breathalyzer’s BAC result might be artificially high.
Mouth Alcohol: A Breathalyzer myth holds that sucking on a penny reduces the defendant’s BAC level. This myth is partially based on fact. If the defendant burped or vomited in the fifteen minutes prior to the test, stomach alcohol particles flood the mouth, artificially raising the defendant’s BAC.
Recent Consumption: Digestively, most alcohol travels from the mouth to the stomach to the liver to the blood. Because of this long process, alcohol consumed within the last hour might not have yet reached the blood. Once again, the BAC estimate is artificially high.
To drive home these points with jurors, Rochester DWI lawyers often partner with chemists. These witnesses explain these flaws to jurors. And, they have more credibility than the Breathalyzer techs that Monroe County prosecutors typically use.
Blood tests are much more accurate than breath tests. However, there may be some procedural issues. For example, if there is a gap in the chain of custody, a DWI lawyer Rochester might establish reasonable doubt as to the sample’s validity.
Non-Intoxication Defenses
Frequently, intoxication is the only material issue in a DWI case. However, in some situations, the defendant could be drunk and a DWI lawyer Rochester can still successfully resolve the case. Some of these defenses include:
Public Place: It is only illegal to operate a motor vehicle while intoxicated in a public place. Shopping mall and apartment complex parking areas are not public places, even if they have traffic control devices and/or street names.
Operating a Vehicle: In New York, “driving” is not an element of Driving while Intoxicated. Prosecutors must simply show that the defendant was operating the vehicle. Usually, that means behind the wheel of an operable vehicle. Lots of situations are in grey areas, such as a parked car with no gas or a parked car not in a public place.
Reasonable Suspicion/Probable Cause: Generally, these are the evidentiary standards for a police stop and an arrest, respectively. Prosecutors have the burden of proof, and in many cases, the evidence simply is not there, or it is inadmissible because of a technicality.
A successful resolution could be a not-guilty verdict at trial, a pretrial dismissal, or a plea to a lesser-included offense, such as DWAI (driving while alcohol-impaired).
Contact a Dedicated Lawyer
Punishments for second-time DWI offenders are harsh, but not inevitable. For a free consultation with an experienced DWI lawyer Rochester, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
If you’re wondering, “Can I represent myself in a criminal case Rochester?” the answer theoretically is yes. In fact, it is often a good idea to represent yourself in a criminal case. That’s usually the situation concerning traffic infractions, like speeding tickets. Unless the case is complex, attorneys often only cause a delay. Self-representation might also be better for certain violations, such as hazing, loitering, or trespassing. However, since these offenses could mean jail time, it’s always best for a Rochester criminal defense attorney to at least review the matter.
In other situations, however, self-representation is too risky. There is too much at stake. Misdemeanors and felonies could mean substantial jail time. That doesn’t include collateral consequences, such as immigration effects.
So, you can represent yourself in a Monroe County criminal case. You could also remove your own appendix. Although these things may have been done before, we would not recommend any of them.
Pretrial Proceedings
Shortly after Monroe County prosecutors file formal charges, the judge rules on important pretrial matters, such as procedural irregularities and evidence admissibility. Experience is key during this portion of a criminal case.
Terms like reasonable suspicion and probable cause are pretty much meaningless to most people. But to experienced attorneys, they are the difference between a legal and illegal arrest. If the stop and/or arrest was illegal, all evidence, including confessions, is the fruit of the poisonous tree.
On a similar note, physical evidence is sometimes admissible and sometimes inadmissible. Even if officers did not have a search warrant, a Monroe County judge might still allow prosecutors to use the evidence in court.
Experience is also important during pretrial hearings themselves. Most criminal judges are not used to dealing with non-lawyers. So, they have very little patience when people speak out of turn or commit other procedural faux pas.
Plea Negotiations
Many people do not see the need for a Rochester criminal defense lawyer during this phase. Generally, that’s because most people do not negotiate financial transactions. When you go to a restaurant or a grocery store, the price is the price. The best lawyer in the world cannot make your hamburger any less expensive.
But negotiating a plea in a criminal case is unlike buying a gallon of milk. It’s more like buying a house. No one pays what the owner asks for. Instead, a realtor negotiates with the owner. Realtors know what similar houses sell for in that area. Likewise, attorneys know what offers prosecutors make in similar cases in that county. So, defendants know if the offer is fair or not.
Additionally, and perhaps more importantly, attorneys know how to evaluate a case from many different angles. Part of this process includes legal evaluations on the amount of evidence the state can use at trial. There are also some less tangible factors, such as the judge’s disposition and the amount of time that passes between arrest and trial. Only the best Rochester criminal defense lawyers know how to account for such factors.
Plea bargains resolve over 95 percent of all the criminal cases in Monroe County. So, this phase is probably the most important part of the criminal justice process.
If the Matter Goes to Trial, Can I Represent Myself in a Criminal Case Rochester?
In the first two phases of a criminal case, defendants basically have an absolute right to represent themselves. They must simply waive their Sixth Amendment right to counsel. Judges usually approve these waivers if defendants understand all the risks involved.
However, if the case goes to trial, the right of self-representation is more limited. Many judges appoint standby counsel in these situations, even if the defendant waives Sixth Amendment rights and objects to the move. These lawyers are available in case the defendants change their minds during the trial. The standby counsel immediately takes over, so there is no need for a mistrial and retrial.
Contact an Experienced Rochester Lawyer
Self-representation in a criminal case is usually, but not always, a very bad idea. For a free consultation with an experienced Rochester lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
