When does Questioning become Interrogation?

If you will remember my recent blogs, I discussed the importance of keeping quiet - not stumbling into providing inculpatory statements to police during a traffic stop by answering question you are not required to answer. The question raised by many readers is when does investigatory questioning become an interrogation that requires Miranda warnings?

The law normally requires that Miranda warnings must be given when an individual is in “custody.” "Custody" for purposes of entitlement to Miranda rights exists only where there is a restraint on freedom of movement of the degree associated with a formal arrest. "Interrogation" is defined as any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Whether a person is in custody depends upon the facts and circumstances of each case. The test is whether, under the totality of the circumstances, a reasonable person would have believed that he was not free to leave.

A recent Ohio case exemplifies the fine line between custodial and non-custodial interrogation. The case of State of Ohio v. Feaster, involved an individual who was in the hospital being treated for multiple gun shot wounds. He was interviewed by police officers regarding the incident that caused his injuries. Subsequently, he was indicted on various felony charges. His attorney filed a motion with the court claiming he had not been given his Miranda warnings prior to his interrogation and, therefore, any statements he gave to the police should be suppressed.

The court denied the defendant’s motion. The court reasoned the interview was conducted without the presence of guards or the use of handcuffs and that the defendant understood what was happening and voluntarily engaged in the interview with the officers. The trial court also found that during the interview of the defendant "[he] was not able to go anywhere due to his own medical situation," not because of any action on the part of the officers. Therefore, the interview was not a custodial interrogation.

While in this writer’s opinion, this is a very narrow interpretation of custodial interrogation, it does point to the dangers inherent when agreeing to be questioned. In applying this case to an DUI/OVI arrest, many an arrest occurs subsequent to an accident while the injured is being treated by EMS or by hospital personnel. The court will look at the “totality of the circumstances” to determine whether questioning is custodial in nature or not. Anything you say might be used against you. Do you want to rely on the court’s interpretation? If the court uses the Feaster case as its precedent, I think not.

Do I Need an Attorney?

I receive many calls from those facing OVI or DUI charges seeking legal advise. Nearly every conversation gets around to the cost and eventually to the question, “Do I need an attorney?” Lets explore that issue. There are a number of reasons why you should have the benefit of counsel.

The Legal Issues Are Very Complex

The defense of an alcohol related driving offense is very complex. A number of areas need to be investigated before you can determine your best approach. Was there probable cause to stop? Was there probable cause to ask for a chemical test? Were the field sobriety tests administered properly? Were the records of the breathalyzer, blood draw, or urine test kept in accordance with Department of Health and Ohio Administrative Code guidelines? Were you properly notified of the consequences of your failure to take a test? If you refused to take a test or the reading was greater the .17 (breath) there can be additional consequences that must be explored. These questions must all be answered before any plea should be given. See my web site for further dicussions of these topic.

Cost of a Conviction

The cost to you of pleading guilty (or no contest) can be staggering. First a DUI/OVI conviction can never be purged from your driving record. It will remain on your driving record your entire life. DUI/OVI is a 6-point offense. An accumulation of 12 points can result in your driving privileges being suspended for an additional one year over and above any suspension resulting from your DUI/OVI conviction. Your insurance rates will surely rise dramatically and your insurance may be cancelled altogether. You may suffer travel restrictions. Many countries, including Canada, have restrictions on admitting anyone convicted of DUI/OVI. Your employment may be impaired if driving on company business is part of your job description. If you have a CDL license you face a mandatory 1-year suspension of your commercial drivers license, with no privileges.

Politics

DUI/OVI is one of today’s political “hot potatoes.” Some judges and police departments have “agendas” to ensure there is a conviction. Many organizations, including MADD actual monitor courts to determine if judges are being too lenient. As a result, a politically charged issue such as DUI or OVI is nearly impossible to win, or get reduced to a non-alcohol offense without some leverage being applied to motivate the prosecutor into thinking the case might be lost..

So, do I need an attorney? I think the answer is self-evident.

The Case for Silence - Part II

In a recent blog I discussed the importance of remaining silent during on OVI investigation. A recent US Supreme Court provides another scenario that buttresses that advice.

The case, Kansas v. Ventris, involved the use of an informant to impeach the testimony of a defendant who denied involvement in a murder. Prior to trial, the police placed an informant in the same cell as the defendant instructing him to “keep [his] ears open and listen” for incriminating statements. According to the informant, the defendant admitted his involvement.

Ordinarily the use of an undisclosed informant used by the police to elicit incriminating statements is in violation of a defendant’s Sixth Amendment right to counsel and is subject to suppression.

The Ventris case carved an exception to that legal tenant. The exception is as follows: If the defendant takes the stand, the informant’s testimony, concededly elicited in violation of the Sixth Amendment, is admissible to challenge the defendant’s inconsistent testimony at trial. In other words, although a statement made by a defendant is ordinarily excluded due to a violation of the defendant’s right to counsel, the statement is admissible to impeach the defendant if the defendant takes the stand and makes a statement inconsistent with that made to the informant.

Applying this case to a typical OVI scenario, you have remained silent during the initial stop and you remained silent during subsequent road side interrogations, during the drive to the police station and during questioning at the station. You are placed in a jail cell with another individual who, in fact, was placed there to elicit incriminating evidence. You admit to him you were driving drunk. He tells the officers what you said. You take the stand and deny you were OVI. Under the Ventris case, the informant’s testimony is now admissible to impeach your testimony!

REMAIN SILENT.

The Case for Silence

There’s an old saying: “Better to keep your mouth shut and allow people to think you’re stupid than to open your mouth and remove all doubt.” The same can be said for a Defendant’s propensity to talk thinking that they can somehow talk themselves out of an arrest.  In the vast majority of cases this is simply untrue.  In fact, the arresting officer wants the individual to keep talking hoping to obtain inculpatory evidence against the them. 

Two recent cases exemplify the importance of keeping quiet.  The first was discussed in my prior article, Recent Court Decisions Expand and Detract Defendant’s Rights.  In that article, I examined the case of Montejo v. Louisiana, a US Supreme Court case that permitted police officers to continue questioning an arrestee even though they know the arrestee is represented by counsel.

Another case, heard in the 11th Appellate District of Ohio (Geauga County) further demonstrates the necessity to “remain silent.”  In that case, the court examined an officer's decision to conduct roadside sobriety tests.  In its opinion, the court discussed factors that must be considered in evaluating a justification for requiring the Defendant to submit to field sobriety tests (tests used by police to determine whether the Defendant’s physical and/or mental capabilities are impaired).  The court outlined eights factors to be considered.  Of those eight, three require the Defendant’s statements:  impairments of the suspect's ability to speak, the suspect's demeanor (belligerent, uncooperative, etc.), and the suspect's admission of alcohol consumption, the number of drinks had, and the amount of time in which they were consumed, if given. 

Simple math, shows that 37½ % of the factors involve the Defendant’s oral statements.  By remaining silent, the factors used by the officer are significantly reduced making it more difficult to justify the use of field sobriety tests.

Both cases demonstrate the importance of silence.  You have no obligation to respond to the officer’s inquiries and, more importantly, you have no obligation to respond to any questions without benefit of counsel.  Silence might be awkward, but may prevent an OVI conviction.

Recent Court Decisions Expand and Detract Defendant’s Rights

Recent U.S. Supreme Court decisions have resulted in major shifts in police power, thus expanding a defendant’s right, on one hand, while reducing those rights on the other.

In the recent case of Arizona v. Gant, the defendant, Gant, was stopped by the police for Driving under Suspension.  His driving privileges had been suspended by the state for a previous violation of Arizona’s traffic laws.  Gant was removed from the vehicle and placed in the officer’s police cruiser.  The officer then searched the defendant’s vehicle and found rock cocaine in the defendant’s jacket pocket.  The defendant was subsequently charged with the drug office in addition to his traffic violation. While the court failed to characterize the search as such, the search was conducted pursuant to a police policy to do so prior to towing the vehicle after an arrest - commonly referred to as an “inventory” search.

The court in its decision stated, 

“Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” 

Because the court did not use the term “inventory search,” a debate has raged among many academics, prosecutors and defendants as to the court’s intent.  Nonetheless, the U.S. Supreme Court has narrowed the right of police to search a vehicle incident to a traffic stop.

In the second case, the court has actually reversed a prior decision of the court regarding the interrogation of arrestees.  Previously, the law stated that police may not initiate questioning of a defendant who has a lawyer or has asked for one unless that attorney is present.  The rule applied even if the Defendant agreed to speak to authorities without their attorney.

This opinion has been overturned.  In Montejo v. Louisiana, the U.S. Supreme Court’s opinion stated, “It would be completely unjustified to presume that a defendant’s consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer.”  

Therefore, it appears the court has shifted the burden to the defendant to show that the defendant was somehow coerced into speaking with the police without the benefit of counsel. Previously, the police could not even ask the defendant who had an attorney if he wanted to talk.  Now, this protection was been overruled and the police can initiate questioning of the defendant, even if the defendant is represented by counsel and it will be the defendant’s burden to seek suppression based upon coercion, threat, or other unconstitutional procedures by the police.

How do these cases impact on a DUI arrest?  Previously, if one is stopped and the police find probable cause to arrest for DUI, the police then initiated an inventory search ostensibly to safeguard valuables of the Defendant when the car was being towed.  If any contraband was found (drugs, open containers, guns, etc.) the Defendant then could be charged with additional offenses, some that may be major crimes.  The court has put an end to this type of search when a defendant is being arrested for a non-contraband offense such as a traffic violation such as DUI.

The impact of the other case impacts on voluntary statements made by a defendant while in custody.  Let us assume the defendant tells the arresting officer they do not wish to speak without the benefit of counsel.  Previously, the questioning had to stop.  Now, this is no longer true.  Using the Montejo opinion, the police can initiate questioning unless the defendant continues to insist on his right to counsel and deeps quiet.  So, it is vitally important that defendant keeps their wits about them and does not respond to the police questioning.  Remember, it is the defendant’s word against the police officer’s word as to the circumstances surrounding a given interrogation,  and the tendency is to side with the police officer.

Refusal to Submit to a Chemical Test - Part II

My last article concerned the consequences of refusing to submit to a chemical test.  I cited the recent Coshocton case where the judge added 10 days to a Defendant’s sentence because he refused to submit to a breathalyzer test.  In my article I submitted that you need to think twice before refusing to submit to a test due to this ruling.

Well, I submit to you an additional reason.  In a recent amendment to Ohio’s OVI laws, the legislature tweaked the “look back” rules.  Previously the court “looked back” 5 years to determine if the Defendant had a previous conviction.  If so, the penalty for each subsequent conviction was enhanced.  Due to the recent legislation, the court can now look back 20 years for any prior conviction and enhance the sentence if the court finds a prior conviction within that time period.  

I recently represented a gentlemen on an OVI felony case.  Why?  On the day of the incident, my client was drinking at his girlfriends home. While driving home, he was stopped for weaving and the officer smelled alcohol his breath.  He was subsequently arrested for OVI and asked to submit to a breathalyzer test.  He refused.  My client thought he was safe as he had not been convicted of an OVI offense for over 6 years.  Unfortunately, he did not know about the new law. He had been convicted of three prior OVI’s prior to that time.  Therefore, because of his refusal, he now faced a felony due to having his fourth OVI in 20 years!

Therefore, if you had a conviction within the last 20 years, you must think twice about refusing.

Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test

You’ve heard the advertising from some DUI defense practitioners: “Refuse the breathalyzer.  It will make it harder to prove you were driving under the influence.”  This might be true, but a recent Ohio case might give you and your attorney second thoughts.

As now constituted, Ohio’s DUI law incorporates penalty enhancement for subsequent offenses.  For example, a first DUI calls for a minimum of three days in jail or diversion, a second in six years requires a minimum of ten days in jail and so on.  Historically, in most instances, courts adhered to these minimums notwithstanding the defendant’s refusal to submit to a test.

Due to a case decided in the Fifth Appellate District (Coshocton, Ohio), this may drastically change.  The case, State of Ohio v. Adam Hill, upheld a courts right to punish a defendant for refusing to take a breathalyzer.  In that case Mr. Hill was arrested for driving under the influence.  He was asked to take a breathalyzer and he refused.  The court gave the Defendant an additional ten days in jail for refusing to take the breathalyzer.  

The Defendant appealed his sentencing arguing his constitutional rights were violated when the court sentenced him to an additional ten days incarceration solely because he refused to submit to a breath alcohol test.

The court stated, “...there is no constitutional right to refuse a chemical test...the choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.”  

The court went on to say, “Since Ohio has long accepted the principle that a defendant’s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment.”  

Therefore, this appellate court upheld the lower court’s decision to add ten days to the defendant’s sentence for refusing to the breath test.  

While this case is only law within the Fifth Appellate’s area of jurisdiction, other Ohio courts are permitted to adopt this reasoning to enhance sentences for a defendant’s refusal to take a test.  And while this decision was made on the appellate level, if the Ohio Supreme Court sustains this case, it will become the law throughout Ohio allowing police to use this leverage to mandate a defendant’s compliance.Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test