Friday, August 8, 2014

Legal Talk -When do the cops have to read me my rights?

The cops didn't read me my rights... So obviously my case will get dismissed. Think again.

This question comes in my office at least once a week. A person accused of a crime will come in on an initial consult with a smile on their face. They can't wait to tell me that there case is going to get dismissed and they don't need my help because, "The cops never read me my rights when they arrested me." Only to be seriously let down when I explain to them, that the cops don't have to and most likely won't read them their rights.

Crickets....Crickets... It's true.

Miranda rights don't have to be read to a person, and Miranda didn't create any new rights. All Miranda vs. Arizona  did was create an obligation on law enforcement to inform a person of their already existing rights.  Miranda vs. Arizona 86 S. Ct. 1602. (1966).  The right to counsel and the right to not incriminate yourself are in the bill of rights. The amendments to the constitution, specifically amendment 5 and amendment 6.

Amendment #5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment #6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Those rights came from the constitution, not Miranda vs. Arizona.

The Miranda warning requires that when a police officer is going to interrogate you and you are in "custodial interrogation" he or she must read you the following warning if he wants to use your admissions against you in the prosecution of your case.  The officer must inform you that you have the right to remain silent, anything you say may be used against you.  You have the right to an attorney during questioning.  If you can not afford an attorney one will be provided for you.  That is it.

When this comes all comes into play is after a person has been arrested, and hired a lawyer.  If the person made an incriminating statement to the police and wasn't given a Miranda warning then his/her lawyer will try to suppress the statement and keep it out of evidence.  During this process the lawyer will claim that the defendant was in "custodial interrogation."  The court will then have to determine if the person was in custodial interrogation and thus should have been issued the Miranda warning.  The court will consider the following factors.

1. When and where the interrogation occurred;
2. How long the interrogation lasted;
3. How many police officers were present;
4. What the officers and defendant said and did;
5. The presence of actual physical restraints on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door;
6. Whether the Defendant is being questioned as a witness or as a suspect;
7. How the defendant got to the place the interrogation took place
8. What happened after the interrogation.

-State of Kansas vs. Karin Mortin, 286 Kan. 632 (Kansas 2008)

If a court finds after considering these factors that a defendant was in custodial interrogation and should have been given a Miranda warning, but did not get the warning.  The incriminating statement should be suppressed and not allowed as evidence.  Now that alone will not get a case dismissed it will only suppress the incriminating statement and possibly any evidence derived from that statement.  That's it.

Many times even if a statement is suppressed the case can still go forward.  For example, If a person shoplifts from a store and is caught on video with the item in their possession.  Then is arrested and during a custodial interrogation admits to the theft.  Even if the person wasn't given the Miranda warning and their lawyer ultimately gets the statement suppressed because of the Miranda violation.  The state will still have the video of the person stealing and the seizure of the stolen merchandise off the defendant as evidence.  In this fact pattern, the State could still prosecute the defendant and would still likely get a conviction, even without the statement.

So the long and short of it is...Not being given your Miranda warning is Not a get out of jail free card.

To be clear,  a Miranda warning doesn't have to be given when...

1. You are voluntarily interacting with the police. If you are free to leave then a Miranda warning doesn't have to be given.

2. You are in custody but not being interrogated.

3. You are making admissions when no law enforcement officer is questioning you.

Remember, Cops don't want to read you your rights.  They don't want to inform you that you don't have to talk to them.  Cops will skate around the rules.  Common ways that cops try to do this are as follows:

1. A cop will just start asking you questions.  If a cop asks you questions don't answer.  Ask the Cop if you are free to leave.  If they say yes then leave.  If they say no, then they need to give you your Miranda warning because you are most likely in custodial interrogation.  Ask if you are free to leave and then leave.

2. A cop will call you on the phone.  They will tell you a complaint has been filed and they want to give you a chance tell your side of the story.  Don't fall for it.  What they really want you to do is provide them with evidence that they can use against you.  It is nearly impossible to be in custodial interrogation if you are on the phone.  On the phone = not in custody.  No custody means no Miranda Warning.

3. Police will talk to you at the scene, they will tell you that you are not under arrest and that they will give you the opportunity to give a written statement if you want to tell your side of the story.  You know,. "for the file."  Don't fall for it.  If your not under arrest your probably not in custody, ergo, you don't have to be given the Miranda warning.  They will use your statement against you.

Lastly, and probably most important of all.  KEEP YOUR MOUTH SHUT!  Many times the police won't have enough evidence to arrest someone or prove their case against someone until they get the suspect to start talking and incriminating him/herself.  The number one rule of staying out of trouble is, don't tell on yourself.  aka.  Keep your mouth shut.

Thursday, July 24, 2014

Legal Talk - When can a cop ask you for identification?

Cops love to overstep their bounds and trample on your rights.  Some people choose to just do what they are told and let the cops tell them what to do.  Some people choose to "go along to get along."  If that isn't you, if you want to exercise your rights when confronted by "the man," then this article is for you.  The "go along to get along" folks may say,

Well why are you doing that?  Why are you being difficult? You haven't done anything why don't you just do what the cops ask? They are just doing their job, stop being so difficult.

To the "go along to get along" folks.

The liberties of our country, the freedom of our civil Constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or to be cheated out of them by the artifices of false and designing men. -Samuel Adams

For the people that are tired of the intrusion, who are tired of the people who weren't cool in high school and are are now in a uniform wielding the sliver of power they have over everyone. Here is what you can do. Exercise the rights you have.

When you have an interaction with a police officer and they ask you to identify yourself, here are your legal rights. Remember, there is a point that we need to clarify before we get started.  Producing 
identification and identifying one’s self are two different things.  To clarify, producing identification means providing a law enforcement officer with a physical object that identifies who you are.  Identifying yourself can be a simple communication of your first and last name.

When do you have to give your license to a police officer?

You are only required to produce your actual physical driver’s license in two separate scenarios.

1.         You are the driver in a motor vehicle that is pulled over in a checkpoint that comports with Brown v Texas  443 U.S. 47 (1979) and more specifically State vs Deskins,  234 Kan. 529 (Kan. 1983) 

(Remember the police have to stop everyone not just random stops of individuals)

The applicable test:
[A] weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” Brown v. Texas, 443 U.S. at 50–51, 99 S.Ct. at 2640–2641.

The factors that are considered in determining if a specific instance is satisfied by the test.
Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are:

(1) The degree of discretion, if any, left to the officer in the field;
(2) the location designated for the roadblock;
(3) the time and duration of the roadblock;
(4) standards set by superior officers;
(5) advance notice to the public at large;
(6) advance warning to the individual approaching motorist;
(7) maintenance of safety conditions;
(8) degree of fear or anxiety generated by the mode of operation;
(9) average length of time each motorist is detained;
(10) physical factors surrounding the location, type and method of operation;
(11) the availability of less intrusive methods for combating the problem;
(12) the degree of effectiveness of the procedure; and
(13) any other relevant circumstances which might bear upon the test. 

Not all of the factors need to be favorable to the state but all which are applicable to a given roadblock should be considered.  State v. Deskins, 234 Kan. 529, 541, 673 P.2d 1174, 1185 (1983)

2.         If you are driving a motor vehicle and you are pulled over by a law enforcement officer and there is at least articulable and reasonable suspicion to believe that the driver or a passenger in the motor vehicle was engaged or had engaged in criminal conduct. Brown v Texas  443 U.S. 47 (1979)  This instance is better explained in Delaware vs. Prouse  99 S. Ct 1391. (1979)

“Except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.Delaware vs. Prouse  99 S. Ct 1391. (1979)

*Note: This rule may be expanded slightly in US vs. Hensley 469 US. 221. (1985).  Only if the stop originated from a stop and inquiry in reference to wanted person in which the officer believes that the occupant of a vehicle was a person depicted on wanted poster. 

When do you have to tell an officer your name?

It depends on the circumstances.  An officer can always ask you your name.  But just because they ask doesn’t mean that you have to answer, you are only obligated in certain scenarios.  Additionally, in some instances even if he/she does have the right to ask and the requirements are met that would require you to answer the state may have no mechanism to prosecute you even if you refuse to identify yourself.

Complicated right?  This is the only time you are obligated to identify yourself other than the two scenarios listed above in which you must provide a physical identifying document.

You only have to identify yourself when the officer is stopping you because he or she has reasonable suspicion that you may be involved in criminal activity. Hiibel vs. Nevada, 124 S. Ct 2451. (2004)   You also can still refuse if you have a reasonable belief that identifying yourself will incriminate you in a crime.

Now that being said, there is some wiggle room here.  To date 23 states have passed “stop and identify” laws. These laws allow an officer to stop anyone and ask them to identify themselves.  The other 27 or so have not passed a similar law.  However, The Hiibel ruling overrides any of the text in the stop and identify laws, so they all have that qualification.  As to the other 27 states, even if you meet the Hiibel requirements and would otherwise be required to identify yourself, but still refuse, the state might not have a way to prosecute you.  But I’ll leave that up to the prosecutors to figure out.  My guess is they would charge a person whom refused with obstruction or a like or similar charge.

If you have made it this far you have figured out that the most important questions to answer in determining if you have to identify yourself is…

“What is Reasonable suspicion?” And..

“How will I know if an officer has reasonable suspicion to believe that I may involved in criminal activity?”
Well that isn’t exactly clear.  The Supreme Court has tried to give guidance as to what “reasonable suspicion” means.  The guidance they give is limited, essentially, they say it’s a case by case basis.  Here is the quote.

"Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, non-technical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. As such, the standards are not readily, or even usefully, reduced to a neat set of legal rules." Ornelas v. U.S., 517 U.S. 690. (1996)

So how do you know if an officer has reasonable suspicion to believe that you may involved in criminal activity, and thus you are required to identify yourself?  That’s easy.  Ask the officer if you are free to leave.  An officer can only detain you if they have reasonable suspicion based on objective facts, that you are involved in criminal activity. Brown v. Texas, 443 U.S. 47. (1979)  If they don’t have reasonable suspicion then you are free to leave and thus don’t have to identify yourself.
 If an officer says you are free to leave you have won the battle.  Leave.  Let them bother the "go along to get along" folks.

Wednesday, July 16, 2014

Overland Park DUI lawyer talks about what to do when you are pulled over for a DUI.

If you ever find yourself on the side of the road in Kansas accused of a DUI, you'll wish you watched this video. This will walk you through the decisions you will have to make and give you the best chance of beating a DUI charge.  The best advice is always don't drink and drive.

If you are charged with DUI please call our office at 913-732-3014 to speak with a DUI defense attorney today.

Thursday, May 22, 2014

Attorney Brandan Davies is now certified in Standardized Field Sobriety Testing per NHTSA guidelines.

Brandan Davies, the criminal defense and DUI defense lawyer for the firm has successfully completed training per the National Highway and Safety Administration's curriculum to administer and score the Standard Field Sobriety Tests. Mr. Davies has been through the exact same training that an officer would receive. After receiving the extensive training Mr. Davies stated, "These tests are complicated and difficult to perform. They are so complicated that the officers charged with giving the instructions on how to complete the test will more often than not, incorrectly instruct the person who is taking the test on how to perform it. Secondly, the officers will often misinterpret the results and incorrectly score a person performing the tests."  "Having an advanced knowledge of how officers administer and score these test will but a DUI Defense lawyer at superior position when critiquing an officer during cross examination, as well as, drafting a motion to suppress."

If you or a loved one has been charged with a DUI in Kansas and need the help of an experienced criminal defense lawyer contact our office today.

Thursday, April 10, 2014

Expungement of a criminal case in Kansas. The truth and the myths

Everybody screws up at some point or another.  Some people get caught, other offenders skate by.  Such is the way of the world.  Most people come to a crossroads and decide that its time to get their act together and set some sort of  goal for themselves.  In the process of working to that goal they decide it would serve them better to clean up their criminal history.  That's usually when they call my office, trying to figure out what can be done.

They have heard of this mystery phrase called "expungement" and they know that they want one, they just aren't sure how to accomplish it.  This article will tell you what an expungement is and what it is not.  It will answer some basic questions that most people want to know and refute some myths or rumors about expungements in Kansas.

First things first, an expungement will never happen automatically.  Convictions or Diversions or Suspended Sentences or even dismissals won't just "fall off your record."  That does not happen, and it will not happen ever, Period.  It is a common misconception that a criminal conviction will fall off your record.  It won't. Ever.  You have to take an active role to clean up your criminal record.  

Second, a typical diversion on a criminal case leaves no record, so you don't need to expunge it.  Wrong. False.  Incorrect.  A diversion still leaves a record.  It can still be looked up just like most any other records.  It just won't show as a conviction.  If you don't want people to know about it, it needs to be expunged.

Third, an expungement will seal and destroy your criminal record so nobody can ever see it again and no job will ever find out.  Sorry folks this is a myth as well.  An expungement even after it is granted will not prevent everyone from seeing your record.  It will still be available to law enforcement.  If you get in more trouble down the road, it will still be used against you in sentencing of your new offense.  Also, you have to remember, this conviction has been out in the public domain for years.  Anyone could have copied that record or downloaded it into some database, et. cetra.  Many companies use outside agencies to conduct background checks, no entity regulates those companies as to the accuracy of their privately maintained data.  The company that you are applying for may use one of these agencies and may still report to your company a conviction even after it has been expunged.

So what the heck does an expungement do anyway?

Well it can dramatically improve your job prospects.  It dramatically limits most company's and private individuals ability to discover your criminal history, it allows you to provide more favorable answers to criminal history questions on job applications.  It can pull records off of online court databases.  It does a lot to help you.  I'll explain each of the things that it does once granted.

It can dramatically improve your job prospects.
Imagine the difference in attitude a prospective employer would have with you if you had no criminal record as opposed to a criminal record.  You start off a job in a position of trust, not in a position of having to earn trust and overcome the stigma of a conviction.  No more explaining your stupid mistake.  No more getting "weeded out" at the preliminary stage of reviewing applications because you checked a box that said felon.

It dramatically limits most company's and private individuals ability to discover your criminal history.
Once the record has been expunged it is removed from public view from the Kansas Bureau of Investigations criminal database.  Most employers and outside agencies that work for employers doing back ground checks rely on the Kansas Bureau of Investigations database.

It allows you to provide more favorable answers to criminal history questions on job applications.
You can legitimately and honestly say that you have never been convicted of a criminal charge once it is expunged.  The law in Kansas, says that a person who has had a record expunged is to be treated as if the conviction never happened.  Most applications do not ask you if you have a record expunged.

It can pull records off of online court databases.
Most local jurisdictions that have online databases available to the public to look at concerning criminal cases, will pull all records of the case from view.  An example would be Johnson County's JIMS system. Once a case has been expunged they quickly pull down the records.

If you need help with an expungement of just want more information regarding expungements.  Call my office or visit my expungement website

Monday, January 27, 2014

Proposed Law in Kansas would make it a crime to make money off being a surrogate mother

It appears that some in the state of Kansas want to further impede on your right to contract.  According to the Kansas City Star, Mary Pilcher-Cook, thinks it should be illegal to charge money to be a surrogate mother.  The purported bill will make surrogate mothers taking money to have a child for someone else a misdemeanor and punishable by up to a $10,000 fine and a year in jail.  Here is the Kansas City Star article.

Kansas bill would make surrogate motherhood for pay a crime

Read more here:

— A Kansas Senate committee’s chairwoman is pushing a proposal that would make it illegal to pay women to be surrogate mothers and void existing surrogacy contracts.

Read more here:

The Public Health and Welfare Committee was meeting Monday afternoon to begin two days of hearings on the proposal from Shawnee Republican Mary Pilcher-Cook.

The bill is patterned after a law in the District of Columbia. Pilcher-Cook has said she’s concerned that Kansas has no laws dealing with surrogacy contracts and she worries about women being exploited.
The measure would cover both oral and written surrogacy contracts.

A person who arranges a contract for pay or other compensation would be guilty of a misdemeanor and could face up to a year in jail and a fine of up to $10,000.

Read more here: