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Did You Say Too Much To The Officer, Or Not Enough?

For years, criminal defense attorneys have cautioned people about the perils of talking to the police when they are suspected of violating the law.  It was sound advice, but now that admonition must be refined in light of a recent decision from the United States Supreme Court.

The case is called Salinas v. Texas and it was issued earlier this year.  Berkemer v. McCarty is a much older case, and it essentially held that a motorist’s roadside statements are admissible at trial. Salinas goes further, as it now empowers prosecutors to introduce “silence” by DUI suspects in response to roadside questioning as evidence of guilt, unless the motorist expressly invokes the Fifth Amendment right to remain silent.

“Before [defendant] could rely on the privilege against self­ incrimination, he was required to invoke it[,]” wrote Justice Alito, who was joined in his opinion by Justices Roberts and Kennedy.  Concurring with these three, Justices Thomas and Scalia opined that the Court should permit silence to be used as evidence of guilt even if the Fifth Amendment is expressly invoked!

This is a terrible decision because it punishes the citizen for exercising the constitutional right to remain silent!  See how it works in this hypothetical:

California Highway Patrol Officer investigating you for a possible driving under the influence charge:  “Are you feeling the effects of the drinks you had?

Motorist’s Response # 1:  “I prefer to not answer that question until I can talk to an attorney.

Motorist’s Response # 2:  [Says nothing]

Motorist’s Response # 3:  “I’m taking the Fifth and not answering you.

In all three situations, the motorist has exercised his Fifth Amendment privilege against self-incrimination, but the responses described in No. 1 and 2 above may be admitted into evidence at trial to show a “consciousness of guilt.”  Only Response #3 will be excluded from evidence, as the Motorist expressly invoked his Fifth Amendment right to remain silent.

A seasoned DUI defense lawyer will know how to minimize the impact of this decision, but knowing the law and having the training and skill to deal with it is crucial in a California drunk driving (or DUI) prosecution.

For representation on any Northern California DUI or DMV matter, contact Board-Certified DUI Defense Attorney Paul Burglin.

Phone:   (415) 453-0534

e-mail:  burglin@msn.com

website: www.burglin.com

 

About Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been specializing in DUI defense for more 35 years After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense (as approved by the American Bar Association) and co-authors the two-volume treatise, "California Drunk Driving Law." He is past Dean of the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program. He has been selected to the 2021 Northern California Super Lawyers list and is A-V rated by Martindale-Hubbell.

If you would like to contact the author, please visit: http://www.burglin.com


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