What Should I Say to Law Enforcement?

            When I am asked by clients if when they should speak to Law enforcement or others including C.P.S. when questioned; my advice is always not to talk with them.  These agencies are attempting to gather information they can use to take away your rights.  The evidence that you present, and the way you present it are extremely important in the decision they make to charge you with a crime, and then successfully prosecute you to conviction.

            The problem most people face is the internal thought that “once they have met me and heard my story, I will convince them that they have the wrong person”.  The issue with this logic is that these agencies are not there to solve a riddle.  Their sole focus is that they have already determined a crime has been committed, by even using their limited resources to investigate one.  Who would ever investigate an incident that was not criminal?

            If charged with a crime you will have an opportunity to tell your side down the road.  There are many serious risks associated with volunteering information that the Prosecution can and will use to prove that you are guilty of a crime.  In a criminal prosecution it is the State's job to proven each and every element of a Crime.  Let me share with you some examples from DUI criminal defense.

            The State must prove even the basic premise that you were in fact driving the vehicle, in the State and County in question.  That you had not had anything to drink after being stopped.  Furthermore that you had not put anything into your mouth for 15 minutes prior to the BAC test. They must prove that the Cop had reasonable grounds to even stop your car.  That the officer had reason to detain you after the stop, to continue the investigation.  That you performed a voluntary field sobriety tests.  Meaning they did not tell you they were voluntary, they in fact asked you if you would do them.  That you did a voluntary PBT (portable breath test).  That there was reasonable cause to then arrest you.  Like you telling them you had been drinking.  You told them where and how much, combined with their observations.

            The State must prove that the BAC machine was functioning properly, that the Simulator Solution was changed within 60 days.  The Simulator Solution used must have been tested and proven accurate. The officer must have followed all the protocols in administering the test.  That your mouth was checked 15 minutes prior to the test, and that the officer kept you under observation that entire time.  That the officer was properly trained and had a current BAC operator’s card.  That the officer was properly trained and had a PBT operator’s card.  That you were read your Miranda rights and did not ask for an attorney or invoke those rights.  The flow charts and checklist is exhaustive many are the results of years of DUI cases and results in the Criminal Courts, do you personally know all this information?

            Some people figure if they just admit it (whether true or not) that maybe they will get left off or be given a break.  The problem with this is that your statement would be given without a deal or agreement of that break that you are seeking.  Also the harder it is, or the less chance there is to actually convict someone by Trial, the more of a break you will be getting.  As a prosecutor if you have two equal charges and one is an easy conviction, and the other you say have only a 60% chance of winning which case will you take to trial and use your resources on? If you confess and that confession cannot be suppressed it will not be hard for them to convict you, it is a slam dunk.

            The person you are talking with does not always remember exactly what you say.  So even if you tell 100% of the truth, it is taken done in a format to highlight those things that can convict you.  None of this is your fault, but it is written up by others whom can testify you said that.  Picture in your mind this, the officer is on the stand in his dress blues.  He has been prepared by the prosecutor ahead of time.  He has already signed the report under the penalty of perjury that it is true.  He wants to read directly from his report.  He states that you said everything on the report or he would not have taken it down 6 months ago when writing it right.  Then you take the stand and deny part of the narrative that says you had 6 beers.  When cross-examined by the prosecutor on the rest of the report you admit you said the rest. How many beers are you going to say you had?  Who would you believe if you were in the Jury today?  Some Jurors believe it is illegal to drink and drive period.

            Take what you might think as an innocent statement like you see on T.V. such as "Yeah I was at the bar, but I did not drink" or “I had just one drink".  These statements can provide probable cause for your arrest.  What if later on the Officer says you then admitted after reading your rights that you had two or three.  What if the officer took it down wrong and put six? You are on the Jury now, and the prosecutor slowly pulls six long neck bottles out of his brief case and leaves them in front of him on the table for the rest of your trial as a visual aid.

            Or take the Statement of yeah I hated him, but that does not mean I killed him.  You have just provided motive you have for the killing.  You add opportunity and a weapon?  Or yes I was in the car, but I was not driving.  That puts you in the car, what if a witness says they saw you getting out of the wreaked cars drivers side.  Or it is noted the seat was positioned way back on the driver's side and you are 6'2".  Or the driver says it was you driving?

            We all have a tendency at story telling in order to get people to like us.  Like yes I went to this college.  Or I would never drink and drive.  Or I was at my grandparent’s fiftieth anniversary, so I only had one drink.  Or I only drank one beer and four hours has passed.  Or I was drinking last night but now I am on my way to work this morning.  We can tell 98% of the truth, but if only one thing is found to be untrue, even if it is not untrue our credibility will be questioned and we must be lying to cover up our crimes.

            So when asked my advice I would always say that nothing good is going to come from speaking with Law enforcement in the investigation phase of a crime.  They are there to prove that you have committed that crime, and any information you give can and will be used for you conviction.