Lawyer Up! Invoke Your Right To Remain Silent (by DaytonDUI)
The Fifth Amendment to the U.S. Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. At trial, the prosecution can neither call the defendant as a witness, nor comment on the defendant’s failure to testify. Whether to testify or not is exclusively the privilege of the defendant. Harris v. N.Y., 401 U.S. 222,225 (1971). Outside the context of detention or arrest, a person has no duty to answer any questions of police at all; and if judicial compulsion is sought by the State, the person still can invoke his Fifth Amendment privilege against compulsory self-incrimination, and refuse to comply. Only if granted immunity by the state, in a formal proceeding, from having any testimony or evidence derived from the testimony used against him, can a person be compelled to answer over an asserion of this privilege. Kastigar v. U.S., 406 U.S. 441, 462 (1972). If police detain (or arrest) a person, they must advise him that he has a right to remain silent, and the right to an attorney, among other rights. If the detained person invokes these rights, all interrogation must cease, and nothing said by the defendant in violation of this rule can be admitted against him at trial. Miranda v. Arizona, 384 U.S. 436, 448-50, 455 (1966).
DUI & The 5th Amendment
We frequently encounter jurisdictions that conduct “interviews” with a suspect following an arrest. These interviews are carefully crafted checklists that gather incriminating statements related to the elements of the crime and further attempt to limit mitigating factors which your attorney may later wish to assert. The questions typically seek to establish that the suspect was “operating” the vehicle. Officers will also ask what the person had to eat and drink, when, where and how much. Medical issues, mental issues, eye health, and other questions seek to limit the suspect’s ability to later assert a defense to the clues of impairment noted by the officer. Some interviews end with the ultimate question of the suspect’s sobriety, asking, “Do you feel you were impaired by alcohol” or similar questions that go to the ultimate issue in the case. What is amazing is the number of people who willingly cooperate and answer damning questions. Doubly amazing is that every single “interview” we have ever seen begins by telling the suspect of their right to remain silent. Please, please, please assert your right to remain silent!
Your silence cannot be used against you, so lawyer up. Politely tell the officer that you will only answer questions if your attorney is present. We are so protective of this right that the prosecutor is not allowed to mention your invocation of the right to silence at all. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d (1976); State v. Stephens, 24 Ohio St. 2d 76, 53 Ohio Op.2d 182, 263 N.E.2d 773 (1970). The prosecutor cannot remark about your silence in his closing, State v. Reed, 23 Ohio App.3d 119, 491 N.E.2d 723 (1st Dist. Hamilton County 1985), nor can he use it against you even if you choose to testify at trial. State v. Stephens, 24 Ohio St. 2d 76, 53 Ohio Op.2d 182, 263 N.E.2d 773 (1970). Your attorney will file a motion in limine prior to the trial to prevent the prosecutor from addressing your silence after questioning. However, the protection is waived if you sign a Miranda waiver form and answer the officer’s questions. By remaining silent you give yourself an incredibly enhanced chance of winning your case.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Fairborn, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Beavercreek, Centerville, Lebanon, Troy, Franklin, Piqua and throughout Ohio. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI(937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at:CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I Do Is DUI Defense.”