Know Your Rights

Have you been questioned by police? Do you know someone who has? Have you been in a situation where you could have been arrested? Do you know your rights when confronted by police?

I am a former Chicago Police Officer and a former prosecutor who was back then on the front line of interrogation for more than ten years. I now use that experience in the defense of those who have been or would otherwise become the object of such interrogation. Since 1982 I have been successfully defending clients charged with all criminal offenses, including murder, robbery, theft, battery, drugs and weapons offenses.

Warren J. Breslin Law Offices, in consultation with veteran colleagues and a team of experienced investigators and experts, work united to gain unbeatable professional advantage in the defense of my clients. It is my intention to share with you some practical information that may influence your awareness and behavior in future police encounters.

No matter what criminal charges may follow in any given case, it seems that most of arrests involve traffic stops. The police may be pursuing an escaping felon or merely following a hunch while issuing a routine minor traffic citation. A youthful driver or suspicious vehicle may be curbed just to be "checked out." Good law-abiding citizens are often caught up in criminal investigations during seemingly casual encounters with police officers.

When a police officer asks a stopped motorist whether he had been drinking, where he had been earlier, where he is going, etc., the officer is not making harmless conversation. He is gathering evidence against the motorist. When a police officer pursues a line of questioning of an individual in any type of case, one can expect that he is being targeted by the officer in an investigation. Providing answers to questions that would normally seem not to be incriminating may prove to be key evidence in a prosecutor’s case, a statement that provides corroborative evidence to an allegation or that provides a necessary motive or opportunity for a crime.

Most of criminal convictions result from arrestees who provide evidence against themselves. There is no better aid to the police in building a criminal case, and there is no worse enemy of the suspect than the suspect himself and his accomplice.

Everyone knows about his Miranda rights from television and movies. Everyone knows the "good cop/bad cop" routine during questioning. But few exercise their rights. People still wrongly believe that the police may go easier on them if they confess or relinquish other evidence against themselves, or that the police will abandon their investigation against them if they offer an excuse or explanation or otherwise show their cooperation.

Most feel compelled to speak, submit to tests, consent to searches, and waive their constitutional rights generally. Know your rights, and rarely waive them! Be assertive! Politely decline to answer questions, and talk with your lawyer before providing the police with any information.

• There can be no questioning if a defendant indicates in any manner and at any stage of interrogation process that he wishes to consult with attorney before speaking. U.S.C.A.Const. Amend. 6.
• Police may not question an individual if he is alone and indicates in any manner that he does not wish to be interrogated.
• Mere fact that an accused may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. U.S.C.A.Const. Amends. 5, 6.
• Privilege against self-incrimination is in part an individual's substantive right to a private enclave where he may lead a private life. U.S.C.A.Const. Amends. 5.
• Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate themselves. U.S.C.A.Const. Amend. 5.

JUVENILES (UNDER AGE 17) HAVE EVEN MORE PROTECTION. See discussion in People v. Lee, 335 Ill.App.3d 659, 781 N.E.2d 310, 269 Ill. Dec. 513 (2002).

"DRIVING UNDER THE INFLUENCE OF ALCOHOL OR DRUGS" CASES have become increasingly more sophisticated for both prosecution and defense. Most police cars and interrogation rooms are equipped with video cameras that capture both visual and audio events of the arrest. Proper defense of your case requires your attorney to subpoena video and audio recordings from the arresting agency before the tapes are recycled for later usage. Gathering reports, breathalyzer or lab records, and all other evidentiary material in a timely manner is essential to a successful defense. And if you have been charged with a DUI out of state, you should retain Illinois counsel to confer with your out of state lawyer to help protect your Illinois license from any reciprocal suspension or revocation. The following will hopefully answer some frequently asked questions and concerns regarding Illinois DUIs:

• Have your valid driver's license, valid insurance card, and valid registration card immediately accessible to hand to the officer. Fumbling for documents is evidence of intoxication.
• Do not admit to drinking alcohol or using any drugs (even when prescribed) if asked by the officer. Keep your conversation to a minimum. He will report on your speech.
• Do not say where you are coming from, or where you are going to, or how long you have been out, or anything else about your private affairs. Simply decline to answer the questions.
• Do not agree to step out of your vehicle to perform "field sobriety tests." Presently, there is no consequence to your Illinois driving privileges for your refusal to take all of the field tests.

If you follow the above preliminary guidelines, the officer might still arrest you, but his grounds to support his decision have been severely limited to his uncorroborated smell of alcohol about you, observation of perhaps bloodshot eyes, slurred speech, awkward mannerisms and your driving maneuver causing the traffic stop. Such limited evidence greatly enhances your probability for an acquittal. Stay in control of information and evidence that you can either withhold or provide..

Once arrested, the officer must request, with proper consequential warnings, that you submit to a breath analysis to determine your blood/alcohol level. He may also, at his option, request that you submit to blood and urine tests. A refusal of any of the requested tests, even if you took or agreed to take one of them, will be reported to activate a refusal suspension of your Illinois driving privileges. That does not necessarily mean that any suspension will take effect. There are many legal challenges which may rescind the summary suspension. It is generally recommended throughout the legal profession that you refuse such testing, despite the possible suspension consequences; unless you are very sure that your blood/alcohol level is under .08, which is the presumptive level of intoxication in Illinois. If you are under 21, Illinois' legal drinking age, you should refuse testing if there is any amount of alcohol in your system due to "Zero Tolerance" suspension consequences and a "Consumption of Alcohol by a Minor" misdemeanor charge that may follow. You should also know that any amount of cannabis or controlled substance in your blood will convict you of DUI. If you have smoked or ingested cannabis within the past couple of weeks (cannabis has been detected in heavy users for up to 45 days following usage) you should always refuse a blood or urine test. Controlled substances generally leave your system within 72 hours. Alcohol generally leaves your system overnight. Cannabis and controlled substances are not detected by a breath analysis machine.

If your lifestyle includes regular situations where you will be driving following a drinking event, it is suggested that you purchase a portable breath tester, such as an AlcoHawk available online or at a novelty store for about $100.

Although the test results are inaccurate and inadmissible in court (as are those of portable units used by the police), they should give you a better awareness of your condition. Remember, however, that your BAC is rising for up to an hour after drinking.

A police officer may want to take a minor traffic stop or other encounter to a higher level of investigation. Do not admit to having weapons or drugs in your vehicle, in your residence, or on your person if an officer should ask you. Do not consent to the search of your vehicle, your residence or your person if an officer should ask you. Police officers may threaten to detain you to have a canine unit respond for dogs to sniff you or your vehicle. They may threaten to detain you until they get a warrant to search you and your property. Remember that officers need probable cause to get a warrant. Just voice your objection to any search. An hour or so of your time being detained is far better than the consequences of uncertain court action. An illegal search can be dealt with in court, unless you have waived your right to privacy by consenting to the search.

It should not matter to you that you have nothing to hide. On principle alone, you should not waive your constitutional rights to allow officers to rummage through your property. Besides, do you really know that your friend or relative did not leave contraband in your vehicle on some prior occasion? Do you really know that the police will not say that they found something where it was not?

You should also know that you may be criminally liable for the criminal actions of companions if you facilitate their commission of a crime. The Illinois statute on accountability states that a defendant is legally accountable for the actions of another when either before or during the commission of an offense and with the intent to promote or facilitate the offense, he solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the offense. But you may not be held accountable for a crime merely by being present, even when you know that a crime is being committed.

KNOW YOUR RIGHTS, and exercise them. Remember to give a police officer no information, not false information. Providing false information to a police officer is a crime. Of course, as a practical matter, you must provide booking identification information for bonding purposes, but do not talk about anything else: just give your name, rank, and serial number, so to speak.

AND YOU MUST NOT RESIST EVEN AN UNLAWFUL ARREST. Pulling away from an arresting officer or stepping back from the officer during his attempt to arrest you may cause additional charges to be lodged against you.

The following statement is provided for you to present to a detaining police officer. It is printed on the backside of my business cards that you may carry for your convenience:

Thank you for allowing me to serve you for the many past years, and thank you in advance for the years that may come. If you have any questions or problems, please do not hesitate to contact me. I still prefer to be reached by telephone: 312-321-9070, but you may e-mail me: warren@breslinlaw.com or fax me: 312-321-9050.

Please know that confidentiality is compromised with e-mail and some unfamiliar e-mail messages may be unopened and discarded due to Internet virus protection, so please follow-up with a call. Your questions and problems will be discussed thoroughly to give you clear insight and direction in your case.

Very truly yours,
Warren J. Breslin