Top Criminal Defense Attorney – Orange County (OC Metro magazine)

Joe Dane named as Top Criminal Defense Attorney in Orange County

 

I am honored to have been named by OC Metro magazine as one of the top attorneys for criminal defense.

OC Metro Top Attorneys feature

For additional information about my background and experience, please see Joe Dane’s “About Me” page.

joedane.ocmetro 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Congratulations to the others selected for this year’s list, all whom I am proud to be colleagues of and call my friend.  

Orange County Criminal Defense Attorney – new office location

I am pleased to announce the new location of my office.  After six years in the previous location,  I have relocated from Orange to the city of Tustin.  Our new address is:

17581 Irvine Blvd., Suite 108

Tustin, CA  92780

 

Same email address, same website, same phone numbers.

 

- Joe Dane

Miranda rights – How to keep your mouth shut (part 3 in a series)

In the first two parts of this series, I’ve discussed the law of the Miranda rights and when the Miranda rights apply.  Now, it’s time to talk about how to invoke your rights if you choose not to talk… and you probably shouldn’t as we’ll discuss in part 4).

 

Who can invoke your rights?

The short answer is:  Only you.  The Miranda rights are drawn from the Fifth and Sixth Amendments of the Constitution.  They are personal constitutional rights and belong to an individual.  They are your rights to waive and yours alone to invoke.  That means that even if I am your attorney, I cannot assert your rights for you.  Here’s that scenario: Let’s say you know you’re under investigation and have hired me to represent you.  The police arrest you and take you to the station.  Your family calls me to tell me you’ve been arrested.  As much as I’d like to, I cannot call the detective up and invoke your rights for you.  Of course, if I show up, it’s different.  The law says I must be allowed to have contact with you and you can guarantee I’ll be telling you to keep your mouth shut from that point on.  They are still your rights though.

When can you invoke your rights?

Although it would be nice if you could take out a small ad in the classified ads announcing to the world, including the police, that you hereby forever forward invoke your Miranda rights, you’d be wasting your money.  Because the Miranda warnings apply during custodial interrogation, when you’re actively being questioned by the police is the time when you can decide to invoke your rights and decline to answer further questions.

You can invoke for ANY questioning, not just when you’re in custody!

Typically, when a person has been arrested and they’re about to question you, they’ll read you your Miranda rights and if you’re smart, you’ll invoke and remain silent.  But your constitutional rights to not incriminate yourself exist all the time, not just when you’re arrested.  Take a typical traffic stop that leads to a DUI investigation.  You’re pulled over for some reason and if the officer smells alcohol, they’ll ask, “Have you been drinking?”  If you answer “yes,” you have just incriminated yourself.  You’re not admitting you’re under the influence or that you’ve had too much, but your statement of admitting having consumed alcohol before driving could be used against you – self incrimination.  In that DUI scenario, if they ask if you’ve been drinking, you could invoke your Fifth Amendment right.  You could simply answer his “have you been drinking” question with “At this point, I’m invoking my Fifth and Sixth Amendment rights not to answer questions without an attorney.”  No, you don’t have a right to have your attorney with you on the side of the road during their investigation, but neither do you have to help them gather evidence to convict you.

I can only imagine the officer’s confusion – they may try to respond with a “but you’re not under arrest” or “I haven’t even read you your rights” or even worse, “you can’t invoke your rights now.”  All three are wrong.  The Fifth Amendment doesn’t say you have a right to be free from self-incrimination only after you’re arrested.  It says you have that right, period.

How to invoke your rights during questioning

I’ve talked in generic terms before about “invoking your rights,” but there are different ways to effectively invoke your Fifth Amendment right to silence and your Sixth Amendment right to an attorney.  What you invoke matters in what the police may do in the future.

First – waiving your rights

My blanket advice is to not waive them and to not make a statement without an attorney.  Just to touch base with waivers of Miranda rights though…

After the police advise you of your rights, they can seek either an implied waiver or an express waiver.  An express waiver is where they ask you a question similar to “with those rights in mind, do you want to talk?’ or “Can we ask you about this” or “do you want to talk?”  They’re looking for a “yes” as your express waiver.

If they read you your rights, get an acknowledgment you understand and then simply start questioning you, if you choose to answer questions, that is viewed as an “implied waiver.”  That means that the court will assume that you chose to waive your rights because you were just told that you had the rights, but you then answered questions rather than remaining silent or asking for an attorney. It’s not necessarily as clean for the police or prosecution, but it is still a valid Miranda waiver.

Invoking your right to silence under the Fifth Amendment

You can invoke your right to remain silent either by words or conduct that express an unwillingness to talk.  For example, if they police asked you (after reading you your rights and asking if you understood, if you tell them in any way that you don’t want to talk or answer questions, you’ve invoked your Fifth Amendment right to remain silent.  Anything like “I’m not talking.” or “I don’t want to say anything/answer questions” will work.  So will simply saying “No” to them asking if you want to talk.

Invoking your right to an attorney under the Sixth Amendment

Unlike invoking your right to silence, the only way to validly assert your right to an attorney is to expressly request an attorney.  Ambiguous or vague comments about getting an attorney will not be seen as invoking your rights to a lawyer.  It is only through the direct request for an attorney that you invoke your Sixth Amendment rights.

If you say something like, “Maybe I should get a lawyer” or “I might want to talk to a lawyer first” are likely not going to be seen as you invoking your rights.

My advise:  If you don’t want to talk to the police (and there are many reasons why you don’t want to talk to the police), invoke your Fifth and Sixth Amendment rights all at once.

“I do not want to talk and I want an attorney.”

That phrase invokes your Fifth Amendment right by indicating your unwillingness to talk and your Sixth Amendment right by directly requesting an attorney.

Next in the series, part 4 – Why you probably shouldn’t talk to the police without an attorney (coming soon)

 

Joe Dane

Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600

Miranda rights and questioning: when it applies – part 2 of a series

In part one, I discussed what the law of the 1966 Miranda decision requires when a person is being questioned by police.  In this part, I’ll explain when the police are even required to read your rights.

First – Custody

The whole decision of the Miranda case dealt with custodial interrogation.  That means that the police are required to give the Miranda warnings when a person is in custody before they can get a statement from them.

What is “custody”?

Under case law, “custody” is defined as a formal arrest or the functional equivalent of an arrest.  Obviously, if you have been told you’re under arrest, you are “in custody” for the purpose of the Miranda rights.  If the police want to question you after you’ve been arrested, they must advise you of your rights.  But other situations can trigger the Miranda rights as well – even when you haven’t been formally arrested.

“Custody” without being arrested

First, a quick overview of the categories of police interaction:

  • Consensual encounter:  The police can engage in a conversation with anyone as long as that person is free to leave and an ordinary person would feel free to leave.
  • Detention: A person is temporarily not free to leave and has been detained based on reasonable suspicion of criminal activity
  • Arrest:  A person has been taken into custody based on probable cause to believe they’ve committed a crime.

It is only during that third category – an arrest – that automatically means they must advise you of your rights before questioning.  During a consensual encounter or detention, case law has said that you’re not “in custody” and therefore the Miranda rights don’t apply.  Here are some examples:

Let’s say the police walk up to a person just standing on the street corner.  Assuming they don’t do anything to indicate the person is not free to go, they could ask if that person had any drugs on them.  If the person says “yes” – it’s absolutely incriminating, but not a Miranda violation because the person wasn’t “in custody”.

Similarly, if you were stopped for speeding and the officer smelled alcohol, you can bet the first question he’d ask would be, “Have you been drinking?”  If you answer “yes”, you’ve just incriminated yourself.  However, because you are only “detained” for the speeding violation, you’re not “in custody” and Miranda warnings are not required.

A detention can be “custody”

In some circumstances, even during a detention, you can be “in custody” for Miranda purposes.  A detention is supposed to be a temporary situation – just long enough for the police to deal with the reason you were detained.  Either they can develop enough evidence to have probable cause to arrest or they will determine there’s not enough and let you go.  If that detention is prolonged (an unreasonable length of time to deal with the reason for the detention), it can turn into the equivalent of custody and Miranda warnings would be required or the statement would be inadmissible.

If the detention rises to a level beyond a temporary detention in its intensity, that too can be “custody” for Miranda purposes.  For example, although a person could be detained at gunpoint initially, to continue to hold them at gunpoint for an extended period of time, surrounding them by multiple officers or other circumstances beyond that necessary to detain someone could make the detention into “custody.”  Transporting a detained individual to another location without their consent or emergency circumstances would also elevate an ordinary detention into custody.

When are you NOT in custody?

When the circumstances surrounding your police interaction are less than I talked about above, it is likely to be seen as non custody.  One of the biggest factors in determining this can be your consent.  The Miranda decision primarily focused on the police-dominated and coercive atmosphere of the police station.  But if you agree to go with the police for an interview or if you show up for an interview, you’re there with consent.  If the police are savvy, they’ll give you a Beheler admonition [from the US Supreme court decision in California v. Beheler (1983) 463 U.S. 1121].  A Beheler admonition is when they advise you that although you may be in the police station behind closed (or even locked) doors, you’re free to go at any time.  If you agree to stay, that takes away (in the court’s mind) any coercive nature of being in the police station.

Custody for Miranda also means just that – you’re in the custody of the police.  You can’t be in custody if they call you on the phone.  No matter how intimidating or heated telephonic questioning may be, you’re free to simply hang up.

So – if the police are required to read you your rights, they must do so or any custodial statement is subject to being excluded from the prosecution’s case.  If you said something in a statement taken in violation of Miranda that leads them to pieces of physical evidence (drugs, a gun, stolen property, etc.), that too can potentially be excluded from evidence.

 

Next up – part 3 in the series – waiving or invoking your rights.

 

Joe Dane, Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600

Miranda and making a statement to police – Part 1 of a series

Miranda rights in criminal cases

 

This is the first part of a series I decided to write regarding the Miranda rights and talking with the police… or more importantly, NOT talking to them.

 

First, the law of Miranda:

In 1966, the United States Supreme Court decided the now-famous Miranda decision (384 U.S. 436).  It set out the rules that now a person who is in custody and being interrogated by the police must be informed of their constitutional rights before any resulting statement can be used against them in court.  That decision doesn’t set out any particular language of the rights that must be given, but there are the four components and they usually go something like this:

  • You have the right to remain silent
  • Anything you say can and will be used against you in a court of law
  • You have the right to an attorney before and during any questioning
  • If you cannot afford an attorney, one will be appointed free of charge

The Fifth Amendment

Those rights come from both the Fifth and Sixth Amendments of the US Constitution.  The Fifth Amendment protects your rights against self-incrimination.  That means that you don’t have to say something that incriminates you – in other words, gets you in legal trouble in a criminal case.  The Miranda decision includes the first two warnings that a person does have that right to not incriminate themselves by talking and that if they do talk, any statement could come back to bite them in court.

The Sixth Amendment

The last two parts are from the Sixth Amendment.  Again, the Miranda decision included the necessity that a person being questioned be advised of their right to representation as guaranteed in the Constitution.  Because custodial questioning is considered an important stage of the criminal process, a person is entitled to the assistance of counsel.  Because it’s such an important constitutional right, the right of an appointed attorney – free if the person cannot afford one – is guaranteed.

The way it is worded above is the generally accepted way the rights are given.  However, as long as the police don’t undermine to change the importance of the warnings, they don’t have to stick to that script word for word.  They can clarify if necessary, use different words or explain in clear language what those rights mean.  They typically stick to the script though since they’re widely accepted and don’t want an argument that they altered, lessened or changed the rights.

Do you understand?

Along with giving the rights, the police must demonstrate that you waived your rights before the statement can be used in court.  The court must be satisfied that you made a knowing, intelligent and voluntary waiver of your rights.  (The specifics of waiving or invoking rights will be discussed in greater detail in part 3 – coming soon)

To try and show that you were advised and understood your rights, they will ask in one of two ways.  Some officers and some departments will ask “Do you understand” after each of the four rights.  They’ll say, “You have the right to remain silent.  Do you understand?” and wait for your response before going on to the next.  Others will read all four parts of the rights and ask one question at the end, such as “Do you understand each one of those rights?” or “Do you understand those rights?” or simply “Do you understand?” They must get an affirmative (yes) response to show you were advised of the rights and acknowledged that you understood them.

 

Now, it’s the subject’s turn

Once the police have given the rights, they have gotten an acknowledgment that the person understood their rights, it now shifts to the subject.  Do they want to talk or not?

 

Before we get to whether a person wants to waive those rights or invoke them, a discussion about when the Miranda rights even apply.  See part two – Miranda rights and questioning… when it applies

 

Joe Dane

Orange County Criminal Defense Attorney

info@joedane.com

714.532.3600