“BUSTED”: Practical application of your rights if arrested
If (when?) the time comes that you find yourself arrested and taken into custody, a long-winded, theoretical, “legalese” study of your legal rights, discussing a “best case scenario”, may be far from what you need; rather, you need some quick, practical advice to carry you through until you have the chance to sit down with a legal professional. With that in mind, let’s consider that TV line from the old “Hawaii Five-O” television show, “Read him his rights, Dan-O”, and translate it into something that will help.
You have four distinct rights, whether or not you are guilty, whenever you are arrested or taken into custody. You may, or may not, be told these rights by an officer, or by a judge, in a form something like:
(1) You have the right to remain silent;
(2) Anything you say can and will be used against you;
(3) You have a right to a lawyer, and to have the lawyer present with you at all critical stages of the proceeding;
(4) If you can’t afford a lawyer, one will be provided for you.
This sounds good, and makes great exam questions for law students, but it may not be all you need to know when you are busted, and you are:
(3) Caught in the act;
(6) Some of the above;
(7) All of the above.
The following may not be all you need to know, either, but it will come closer.
SHUT UP. Don’t talk. This has two sub-categories.
(a) Don’t talk to anyone about what you are being arrested for (booking information, like name, address and phone, are OK). A little paranoia is good for you. The police may harass you, or talk friendly, or alternate between the two, or assure their kindness in return for your honesty, or tell you that it’s just between the two of you, or that you will feel better if you talk, or tell you that somebody else has already talked. It may be a uniformed or plainclothes policeman, the advisor in your college dorm, the Dean, or even a local judge. Don’t talk, other than “booking” stuff like name, address, phone number, and date of birth. Just say you want to talk to your lawyer first.
You probably can’t talk your way out of trouble; or lower the charge by talking; you may be able to point out things they didn’t know, or didn’t notice, that will make your situation worse. It’s highly unlikely that you can convince them, right then, that you’re such a nice person that all will be forgiven – so don’t try. Be careful with “friendly conversation”; even conversation which seems innocent can come back to haunt you later on.
Don’t tell the police their job. They should know it better than you, and if they don’t, that might be helpful to you later on. Don’t remind them that they haven’t told you your rights, or ask them when they are supposed to tell them to you; just remember that they haven’t, and when (and if) they do.
PAY ATTENTION. This goes along with “shut up”. Try to notice, and remember, who is present when you are busted, and how many people are there. Are they armed? How are they dressed? What do they say to each other, or to you, and when it is said, and who is there when it is said? When and where do they first tell you your rights? What names of officers do you overhear? When you get a chance, make notes, in as much detail as you can, and deliver them to your lawyer; it is best, however, to wait until you are out of the police station or jail to write them down. There may be significant questions about the validity of what they have done, and you may be the only witness on your side.
ASK FOR A LAWYER. As immediately as you can. When you are arrested, you are on the inside. A lawyer may be the only one who can get to you, and get out again. A lawyer may be able to discover some loopholes before they get plugged; arrange for bail, or a bail bond; and protect you from screwing yourself up more than you already have. Do it right away, if you are held in jail; you have made contact with someone who knows where you are, and have affected your legal rights simply by asking for a lawyer – such as the ability of the police to get you to incriminate yourself.
If you don’t know a lawyer, call somebody who will get one for you. Call a friend or somebody who has had a lawyer before. Even the yellow pages may be better than going it alone. If you think you want to be defended by Daddy’s hotshot lawyer back home, but he’s in Bermuda till next Tuesday, call somebody to help in the meantime.
A few remaining points should be considered:
Attitude: angry, arrogant, or “wise-guy” are the most important ways not to be. When you are in police custody, you are on their ground. Most officers (but not all) don’t want to make your life more miserable than required to get the job done. You gain nothing, even if you’re guilty, in making the officers unnecessarily dislike you (even the ones that don’t fit that “most officers” label), and you may get yourself in more trouble.
Plea: you may be brought before the judge before you have the chance to talk to a lawyer, and the judge may ask how you plead. Despite the desire to “get it over with”, remember that even a local ordinance violation can bring a “conviction record”, a significant fine, and perhaps other repercussions. With a misdemeanor, whether in the criminal or traffic area, you gain a permanent criminal record.
Preliminary hearing: the Judge, in a felony case, may ask you if you want a preliminary hearing, or if you will waive it; don’t waive it. In fact, don’t waive anything you don’t fully understand until you have had the chance to talk to a lawyer. Even if they say “waive it; your lawyer can get it back if he wants it”, that may not be true; ask if you can, instead, postpone the decision on that, without waiver, till you get your lawyer. There are solid reasons, sometimes, to waive it, but there can be solid reasons not to do that; let the lawyer make the decision.
Don’t “bull” the police. When they ask, give them your correct name and address; if you are a student, tell them where. Give them your height, weight, location of tattoos, etc., as accurately as you can. But:
Don’t volunteer anything; just answer those simple questions about your identity. You risk saying too much. Don’t talk about the circumstances about which you are being arrested. Praising the quality of the drugs is as much a confession as saying “I’m guilty”. It is OK to smile if the officer makes a joke, acknowledging his/her wit and good humor, but don’t make jokes yourself, possibly displaying a bad attitude. If you are the target of the jokes, accept it, shut up, and keep your cool.
Be careful. Things may be more serious than you think. A drug case can be every bit as serious as a rape case – or more. Drunk driving can have a wide variety of effects. Remember that in an arrest, the police have the power, the experience, and the authority. The best way to try to balance that is with a little practical knowledge, awareness, and intelligence.
All of this is no substitute for getting a lawyer; but it may help until the lawyer gets there.