Category: Legal News

In addition to being named one of Hollywood’s top DUI Lawyers, Kevin Fard law received an A+ Grade for both Reputation and Professionalism.

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One of the most common questions people ask about after being arrested is about their Miranda rights. This can be even more confusing after a DUI arrest, because in those cases the officers usually do not even bother with reading them.

What Are Miranda Rights?

Miranda rights are a series of warnings that police officers may give you during an arrest. In the most common form the officer will likely advise you of the following:

1. You have the right to remain silent,
2. Anything you say can and will be used against you in a court of law,
3. You have the right to an attorney,
4. If you cannot afford an attorney, one will be provided for you.

Miranda rights are based on your 5th Amendment constitutional right against self-incrimination and your 6th Amendment constitutional right to counsel. In the landmark United States Supreme Court decision Miranda v. Arizona (1966) 384 U.S. 436, the Supreme Court held that incriminating statements made after a person is in police custody cannot be used against him unless he was informed of rights against incrimination and to counsel beforehand.

When Does A Police Officer Have to Read My Miranda Rights?

Technically, a police officer never has to read you your Miranda rights. However, your Miranda rights kick-in when:

1. You are in custody/under arrest, and
2. Subject to an interrogation.

If the police ask you any incriminating questions after your arrest, without first giving your Miranda warning, and you answer, those statements cannot be used against you in court.

How Does This Apply to A DUI Case?

In DUI cases, police officers usually ask all of their incriminating questions before you are in custody. For example, after an officer pulls you over and begins a DUI investigation, he will usually ask you several incriminating questions including where you are coming from, if you had anything to drink, etc.

Even though you may feel you are in custody while you are pulled over and subjected to field sobriety tests, the Supreme Court, with confusing rational, held that being subject to a police investigation is different from being in police custody and not subject to Miranda. Therefore the questions asked during your DUI investigation are not subject to Miranda.

So, by the time the officer arrests you and your Miranda rights kick-in, the officers usually don’t need anymore information from you, and do not ask you any further questions. Consequently, whether or not an officer read you your Miranda rights is usually a non-issue in DUI cases.

Are Their Any Protections Against Incriminating Police Questions Before My Arrest?

Yes! Regardless of your Miranda rights, you ALWAYS have your 5th Amendment right against self-incrimination and 6th Amendment right to an attorney. Once you invoke these rights, the police officer can no longer ask you any incriminating statements regardless of whether he has just pulled you over or is booking you in the station.

When your license is taken from you after a California DUI arrest, you are entitled to an administrative hearing with the DMV on whether that action was justified. Upon scheduling your hearing, a hearing officer will be assigned to your case. But what are their qualifications?

Is my DMV hearing officer a lawyer or judge?

No. The outcome of your legal hearing will not be determined by a person with any credible legal training or education. In fact, according to the DMV, a hearing officer applicant is not even required to have a college degree.

If my DMV hearing officer is not a lawyer or a judge, does that mean my DMV hearing will not involve any legal issues?

No.  Your hearing will most likely involve three issues:

1. Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of CVC §§23152, 23153, or 23154?
2. Were you lawfully detained while on DUI probation or lawfully arrested?, and
3. Were you driving a motor vehicle when you had 0.01% BAC or more while on DUI probation; 0.04% BAC or more while driving a commercial vehicle; or 0.08% BAC or more while driving a noncommercial vehicle.

Each one of these issues is littered with evidentiary and constitutional legal questions that can easily be overlooked and dismissed by someone without proper legal training.

For example, an illegal stop/arrest in violation of the 4th amendment right against unreasonable search and seizure might get your case dismissed by a judge in court, but go right over the head of your hearing officer.

Is there any way to use this information to my advantage?

Yes. By hiring a lawyer, you ensure that you are the only party in your DMV hearing with the proper legal training and experience to highlight the issues in your case that would otherwise be overlooked by your hearing officer.

The past few years have been huge for the awareness of the wrongful conviction epidemic in our criminal justice system. The popularity of shows like Making a Murderer, Serial podcast and recent media attention to certain cases of such as the exoneration of former USC and NFL prospect Brian Banks are slowly re-focusing the attention further away from the accused and more towards the accusers. The potent combination of untruthful witnesses, untruthful officers/detectives, overzealous and willfully-blind prosecutors, incompetent defense attorneys and simple bad luck seems to have been the key to thousands of innocent lives ruined over the last several decades.

For criminal defense attorneys, wrongful convictions are the original sin, and preventing them is what keeps us going and why we even have skin in the game.

For example, take the story of Anthony Ray Hinton, who was released in April after thirty years behind bars, including time on Alabama’s Death Row. Renewed testing showed that bullets used in the 1985 shootings of two restaurant employees did not come from a gun that was later found at Mr. Hinton’s home. The prosecutors, police officers and ballistic “experts” that either could not figure this out or lied about it at the time, presumably all went on to live happy lives with children, grand-children, puppies and white-picked fences, while Mr. Hinton rotted in a cage for three decades.

Upon release, Mr. Hinton told reporters that the people responsible for his wrongful conviction will have to answer to god.   And in reality there is a better chance that god almighty himself will hold them accountable before anybody in our judicial system.

The University of Michigan National Registry of Exonerations currently lists over 1500 documented exonerations since Gary Dodson, who was the first person exonerated by DNA in 1989. Because the registry does not include many individuals who served their full sentence or who accepted plea deals for lighter sentences, it is under-inclusive and merely scratches the surface of the actual number of individuals who have been wrongfully convicted for crimes they did not commit. Furthermore, exonerations for lesser low-profile crimes and misdemeanors are not even included in the registry which makes knowing the actual number of wrongful convictions in the country effectively impossible.

In 2014, another victim Susan Mellen was exonerated after spending seventeen years in a California prison for a murder conviction that was based entirely on testimony by an informant considered to be a “pathological liar.” And later that year, Michael Hanline was exonerated after spending thirty-six years behind bars for a murder conviction due to contradicting DNA evidence and false witness testimony.

What happened to the prosecutors who oversaw these convictions? You guessed it, nothing! Obviously, not all wrongful convictions are attributable to the actions of prosecutors, as some cases will inevitably slip through the cracks due to a myriad of reasons. But what about the cases where the prosecutor caused the wrongful conviction due to intentional misconduct or willful neglect? For the purpose of this discussion, lets pretend that you were the victim of a wrongful conviction. Here’s a quick primer on how the perpetrators of your wrongful conviction will be held accountable:

Question: Will the people who caused my wrongful conviction go to jail?

Answer: Probably not, and if they do, it wont be for long. The only instance of a prosecutor going to jail for a wrongful conviction is in 2013 when former prosecutor Ken Anderson served a grueling 10 DAYS in county jail for contempt of court after the 1987 wrongful murder conviction of Michael Morton he administered by concealing exculpatory evidence during the trial. Talk about a deterrent!

Question: If they wont be punished, can I at least sue the people who caused my wrongful conviction.

Answer: Probably not. In civil matters, the general rule is that all prosecutors have absolute immunity from any lawsuit for perpetrating a wrongful conviction based on the exaggerated notion that they cannot do their jobs if there with any fear of being sued. (i.e., If a prosecutor rear ends you in the courthouse parking lot and your neck is a little sore, you can sue him. But, if that same prosecutor wrongfully accuses you of murder, sends you to prison for thirty years, effectively destroying your life, you are shit out of luck.)

Question: Is there any hope, solutions, potential for change?

Answer: Yes! Police officers operate under a lesser qualified immunity, which allows them to do their job without fear of lawsuits for mistakes, but also allows victims to sue for intentional egregious misconduct. Prosecutors should do just fine under this standard, and at least some courts are slowly beginning to muster up the courage to call out absolute prosecutorial immunity for what it is.

Over the years, courts have found exceptions to the notion absolute immunity for prosecutors. In 1993, in the case of Buckley v. Fitzsimmons (509 US 259) the Supreme Court ruled that prosecutors are not entitled to absolute immunity for misconduct during the investigation stage. And this was bolstered last year by 7th Circuit Court of Appeals in the case of Fields v. Wharrie (2014 U.S. App. LEXIS 1333.)

Although this isn’t much, as the tide turns in this country with more awareness of the gravity of wrongful convictions, lawmakers and courts will hopefully have no choice but to stop hiding behind the bushes and take a more proactive stance towards accountability in these awful cases.