I’m sure you’ve seen Law and Order, or some other TV show that involves crimes, suspects and police. The screenwriters usually do a good job with the script, but the shows often lack something very important: reality.
Tuesday I interviewed Audrey A. McCain, a criminal defense attorney since 1988 and I asked her to help me compile a list of common myths in criminal law, especially any myths among younger generations.
Myth: Police are required to inform you of your Miranda rights prior to arresting you, as Law and Order would have you think.
Fact: Police do not have to inform you of your rights as they are arresting you.
However, if you are not informed of your right to remain silent and you admit to an illegal action, your admission of guilt is inadmissible in court. But, in that case, it is your word against the police. They may claim you were read your rights, while you claim the opposite. Depending on a judge’s discretion, you may be out of luck.
Myth: Your blood alcohol level must be .08 in order to be legally intoxicated.
Fact: If you are under 21, as most LSU undergraduate students are, in order to be legally intoxicated, your blood alcohol level need only be .02.
Some undergraduate students may one day find themselves in the position where a police officer is responding to a disturbance call in which they may be involved. At some point the responding officer may ask a student (who is younger than 21) if he has had anything to drink. The student, believing the officer knows he has, will say something like, “Yeah, but I only had one beer.”
The officer may crack a smile and say, “Oh, okay, son. Only one beer?”
The student will confidently re-assert his one-beer defense and think he has outsmarted the policeman. Unfortunately, he hasn’t. Rather, being younger than 21, the student has admitted that his blood alcohol level is above .02 and is then probably arrested or given a citation for “disturbing the peace by means of public intoxication.”
So what can you do to avoid this situation in the future? The answer is simple and universal (at least from criminal defense attorneys): “Keep your mouth shut; don’t say anything. You have the right to remain silent, be silent,” former state representative McCain said.
Myth: Police must have a warrant to search your vehicle.
Fact: Depending on the circumstances, police do not necessarily need a warrant to search your car.
Driving in Louisiana is a privilege, not a right. When you are driving a vehicle, you are doing so in a public space, and by law, your right to privacy is diminished in public. Now, this does not mean police can search your car without cause. Police do need “probable cause” in order to search a vehicle. “Probable cause is slightly more than a hunch, but less than a certainty,” McCain, the president of the 18th Judicial District Bar Association, said.
An obvious exception to the probable cause rule often is called the “plain sight” rule. “If a policeman pulls you over for speeding and happens to see a bag of marijuana, he can arrest you right then and there,” McCain, a former public defender, said.
Another issue of diminished rights on the road is driving while intoxicated. In the mid-’90s the Louisiana Legislature enacted an “implied consent” law. Because driving is a privilege, if you drive on a public road you automatically agree to certain concessions of rights. Anywhere at anytime, if an individual is driving intoxicated, or believed to be driving intoxicated, police can demand that the alleged drunk driver take a field sobriety or Breathalyzer test.
What also is true is that you can refuse to take a field sobriety or Breathalyzer test. However, if you refuse to take the tests, you automatically are charged with DWI. A failure to comply with an officer’s demand to take the tests results in a six-month suspension of your driver’s license, which is the same penalty for being convicted of first offense DWI.
The only up side is that failure to comply with an officer’s demand does not permanently remain on your record. So in most cases you’re better off refusing to take the tests. On second thought, you’re really better off not driving drunk in the first place.